Exhibit 99.1
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT"), dated as of
February __, 2003, is by and among Coeur d'Xxxxx Xxxxx Corporation, an Idaho
corporation (the "COMPANY") and each of the persons signatory and listed on
Annex A hereto (each, a "PURCHASER").
RECITALS
WHEREAS, simultaneously with the execution of this Agreement, the Company
will enter into registration rights agreements (the "OTHER REGISTRATION RIGHTS
AGREEMENTS") identical to this Agreement with the other purchasers as
signatories to such agreements (the "OTHER PURCHASERS" and, together with each
Purchaser hereunder, the "PURCHASERS").
WHEREAS, the Company proposes to issue and sell to the Purchasers, upon
the terms set forth in the Purchase Agreements, dated as of February __, 2003,
by and between the Company and the Purchasers (the "PURCHASE Agreements"),
$37,185,000 aggregate principal amount of its 9% Convertible Senior Subordinated
Notes due 2007 (the "INITIAL SECURITIES"); and
WHEREAS, the Initial Securities will be convertible into shares of common
stock, par value $1.00 per share, of the Company (the "COMMON STOCK") at the
conversion price set forth in, and will be issued pursuant to, an Indenture,
dated as of February __, 2003 (the "INDENTURE"), between the Company and The
Bank of New York, as trustee (the "TRUSTEE").
AGREEMENT
NOW, THEREFORE, in accordance with the provisions of the Purchase
Agreements, the Company agrees to provide for the benefit of (i) each Purchaser,
for as long as they own any Securities (as defined below) and (ii) the holders
of the Initial Securities and the Common Stock issuable upon conversion of the
Initial Securities (collectively, the "SECURITIES") from time to time until such
time as such Securities have been sold pursuant to a Shelf Registration
Statement (as defined below) (each of the forgoing a "HOLDER" and collectively
the "HOLDERS"), as follows:
1. Shelf Registration. (a) The Company shall, at its cost, prepare and, as
promptly as practicable after the date hereof, file with the Securities and
Exchange Commission (the "COMMISSION") and thereafter use its best efforts to
cause to be declared effective as soon as practicable a registration statement
on Form S-3 (which may be in the form of an amendment to the Company's
registration statement on Form S-3 (File No. 333-101434) to include the Holders
as selling security holders therein) (the "SHELF REGISTRATION STATEMENT")
relating to the offer and sale of the Transfer Restricted Securities (as defined
below) by the Holders thereof from time to time in accordance with the methods
of distribution set forth in the Shelf Registration Statement and Rule 415 under
the Securities Act of 1933, as amended (the "SECURITIES ACT") (hereinafter, the
"SHELF REGISTRATION"); provided, however, that no Holder (other than a
Purchaser) shall be entitled to have the Securities held by it covered by such
Shelf Registration Statement unless such Holder agrees in writing to be bound by
all the provisions of this Agreement applicable to such Holder. "TRANSFER
RESTRICTED SECURITIES" means each Security until (i) the date on which such
Security has been effectively registered under the Securities Act and disposed
of in
accordance with the Shelf Registration Statement, (ii) the date on which such
Security is distributed to the public pursuant to Rule 144 under the Securities
Act or (iii) such Securities shall have ceased to be outstanding.
(b) The Company shall use its best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the prospectus included
therein (the "PROSPECTUS") to be lawfully delivered by the Holders of the
relevant Securities, for a period of two years (or for such longer period if
extended pursuant to Section 2(h) below) from the date of its effectiveness or
such shorter period that will terminate when all the Securities covered by the
Shelf Registration Statement (i) have been sold pursuant thereto, (ii) become
eligible for resale pursuant to Rule 144(k) under the Securities Act or (iii)
cease to be outstanding (in any such case, such period being called the "SHELF
REGISTRATION PERIOD"). The Company shall be deemed not to have used its best
efforts to keep the Shelf Registration Statement effective during the requisite
period if it voluntarily takes any action that would result in Holders of
Securities covered thereby not being able to offer and sell such Securities
during that period, unless such action is (i) required by applicable law or (ii)
taken by the Company in good faith and contemplated by Section 2(b)(v) below,
and the Company thereafter complies with the requirements of Section 2(h).
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall use its best efforts to ensure that the Shelf
Registration Statement and the Prospectus and any amendment or supplement
thereto, as of the effective date of the Shelf Registration Statement, amendment
or supplement, (i) comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) do not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
2. Registration Procedures. In connection with the Shelf Registration
contemplated by Section 1 hereof, the following provisions shall apply:
(a) The Company shall (i) furnish to each Purchaser, prior to the filing
thereof with the Commission, a copy of the Shelf Registration Statement and each
amendment thereof and each supplement, if any, to the prospectus included
therein and, in the event that a Purchaser (with respect to any Initial
Securities purchased under the Purchase Agreements) is participating in the
Shelf Registration Statement, shall use reasonable efforts to reflect in each
such document, when so filed with the Commission, such comments as such
Purchaser reasonably may propose; and (ii) include the names of the Holders who
propose to sell Securities pursuant to the Shelf Registration Statement as
selling securityholders.
(b) The Company shall give written notice to each Purchaser and the
Holders of the Securities (which notice pursuant to clauses (ii)-(v) hereof
shall be accompanied by an instruction to suspend the use of the Prospectus
until the requisite changes have been made):
(i) when the Shelf Registration Statement or any amendment thereto
has been filed with the Commission and when the Shelf Registration
Statement or any post-effective amendment thereto has become effective;
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(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Shelf Registration Statement or the initiation of
any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to make
changes in the Shelf Registration Statement or the Prospectus in order
that the Shelf Registration Statement or the Prospectus does not contain
an untrue statement of a material fact nor omit to state a material fact
required to be stated therein or necessary to make the statements therein
(in the case of the Prospectus, in light of the circumstances under which
they were made) not misleading.
(c) The Company shall make every reasonable effort to obtain the
withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Holder of Securities included within
the coverage of the Shelf Registration, without charge, at least one copy of the
Shelf Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if the Holder so requests in writing,
all exhibits thereto (including those, if any, incorporated by reference).
(e) The Company shall, during the Shelf Registration Period, deliver to
each Holder of Securities included within the coverage of the Shelf
Registration, without charge, as many copies of the Prospectus (including each
preliminary prospectus) included in the Shelf Registration Statement and any
amendment or supplement thereto as such person may reasonably request. The
Company consents, subject to the provisions of this Agreement, to the use of the
Prospectus or any amendment or supplement thereto by each of the selling Holders
of the Securities in connection with the offering and sale of the Securities
covered by the Prospectus, or any amendment or supplement thereto, included in
the Shelf Registration Statement.
(f) Prior to any public offering of the Securities pursuant to the Shelf
Registration Statement, the Company shall use its best efforts to register or
qualify or cooperate with the Holders of the Securities included therein and
their respective counsel in connection with the registration or qualification of
the Securities for offer and sale under the securities or "blue sky" laws of
such states of the United States as any Holder of the Securities reasonably
requests in writing and do any and all other acts or things necessary or
advisable to enable the offer and sale in such jurisdictions of the Securities
covered by such Registration Statement; provided, however, that the Company
shall not be required to (i) qualify generally to do business in any
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jurisdiction where it is not then so qualified or (ii) take any action which
would subject it to general service of process or to taxation in any
jurisdiction where it is not then so subject.
(g) The Company shall cooperate with the Holders of the Securities to
facilitate the timely preparation and delivery of certificates representing the
Securities to be sold pursuant to any Registration Statement free of any
restrictive legends and in such denominations and registered in such names as
the Holders may request a reasonable period of time prior to sales of the
Securities pursuant to the Shelf Registration Statement.
(h) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 2(b) above during the period for which the Company is
required to maintain an effective Shelf Registration Statement, the Company
shall promptly prepare and file a post-effective amendment to the Shelf
Registration Statement or an amendment or supplement to the Prospectus and any
other required document so that, as thereafter delivered to Holders or
purchasers of the Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. If the Company
notifies each Purchaser and the Holders in accordance with paragraphs (ii)
through (v) of Section 2(b) above to suspend the use of the Prospectus until the
requisite changes to the Prospectus have been made, then each Purchaser and the
Holders shall suspend use of such prospectus, and the period of effectiveness of
the Shelf Registration Statement provided for in Section 1(b) above shall be
extended by the number of days from and including the date of the giving of such
notice to and including the earlier of (i) the date when each Purchaser and the
Holders shall have received such amended or supplemented prospectus pursuant to
this Section 2(h) and (ii) the effective date of notice by the Company to each
Purchaser and Holders that the Shelf Registration Statement is effective and
that no supplement or amendment is required.
(i) Not later than the effective date of the Shelf Registration Statement,
the Company will provide CUSIP numbers for the Initial Securities and the Common
Stock registered under the Shelf Registration Statement, and provide the Trustee
with printed certificates for the Initial Securities, in a form eligible for
deposit with The Depository Trust Company.
(j) The Company will use its best efforts to comply with all rules and
regulations of the Commission to the extent and so long as they are applicable
to the Shelf Registration and will make generally available to its security
holders (or otherwise provide in accordance with Section 11(a) of the Securities
Act) an earnings statement covering at least twelve months satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder as
soon as reasonably practicable.
(k) The Company shall cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended, (the "TRUST INDENTURE ACT") in a timely
manner and containing such changes, if any, as shall be necessary for such
qualification. In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall appoint a
new trustee thereunder pursuant to the applicable provisions of the Indenture.
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(l) The Company may require each Holder of Securities to be sold pursuant
to the Shelf Registration Statement to furnish to the Company such information
regarding the Holder and the distribution of the Securities as the Company may
from time to time reasonably require for inclusion in the Shelf Registration
Statement, and the Company may exclude from such registration the Securities of
any Holder that fails to furnish such information within a reasonable time after
receiving such request.
(m) The Company shall enter into such customary agreements (including, if
requested, an underwriting agreement in customary form, provided that the
Company shall not be required to effect more than one underwritten offering on
behalf of the Holders during any twelve month period during the Shelf
Registration Period, and no more than two in total) and take all such other
actions, if any, as any Holder shall reasonably request in order to facilitate
the disposition of the Securities pursuant to the Shelf Registration.
(n) The Company shall (i) make reasonably available for inspection by the
Holders, any underwriter participating in any disposition pursuant to the Shelf
Registration Statement and any attorney, accountant or other agent retained by
the Holders or any such underwriter, all relevant financial and other records,
pertinent corporate documents and properties of the Company and (ii) cause the
Company's officers, directors, employees, accountants and auditors to supply all
relevant information reasonably requested by the Holders or any such
underwriter, attorney, accountant or agent in connection with the Shelf
Registration Statement, in each case, as shall be reasonably necessary to enable
such persons, to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; provided, however, that the foregoing
inspection and information gathering shall be coordinated on behalf of each
Purchaser, together with the Other Purchasers, by one counsel designated by and
on behalf of the Purchasers as described in Section 3 hereof.
(o) The Company, if requested by holders of a majority in aggregate
principal amount of Securities covered by this Agreement and the Other
Registration Rights Agreements covered by the Shelf Registration Statement
(provided that Holders of Common Stock issued upon the conversion of the Initial
Securities shall be deemed to be Holders of the aggregate principal amount of
Initial Securities from which such Common Stock was converted) or the managing
underwriter, if any, shall cause (i) its counsel to deliver an opinion and
updates thereof relating to the Securities in customary form addressed to such
Holders and the managing underwriters, if any, thereof (it being agreed that the
matters to be covered by such opinion shall include, without limitation, the due
incorporation and good standing of the Company and its subsidiaries; the
qualification of the Company and its subsidiaries to transact business as
foreign corporations; the due authorization, execution and delivery of the
relevant agreement of the type referred to in Section 2(m) hereof; the due
authorization, execution, authentication and issuance, and the validity and
enforceability, of the Securities; the absence of governmental approvals
required to be obtained in connection with the Shelf Registration Statement, the
offering and sale of the Securities, or any agreement of the type referred to in
Section 2(m) hereof; the compliance as to form of the Shelf Registration
Statement and any documents incorporated by reference therein and of the
Indenture with the requirements of the Securities Act and the Trust Indenture
Act, respectively; and, as of the date of the opinion, the absence from the
Shelf Registration Statement and the prospectus included therein, as then
amended or supplemented, and from any documents incorporated by reference
therein of an untrue statement of a material fact or the
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omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading (in the case of any such
documents, in the light of the circumstances existing at the time that such
documents were filed with the Commission under the Securities Act)); (ii) its
officers to execute and deliver all customary documents and certificates and
updates thereof requested by any underwriters, if any, of the Securities and
(iii) its independent public accountants to provide to the selling Holders of
the applicable Securities and any underwriter therefor, if any, a comfort letter
in customary form and covering matters of the type customarily covered in
comfort letters in connection with primary underwritten offerings, subject to
receipt of appropriate documentation as contemplated, and only if permitted, by
Statement of Auditing Standards No. 72.
(p) The Company will use its best efforts to (a) if the Initial Securities
have been rated prior to the initial sale of such Initial Securities, confirm
such ratings will apply to the Securities covered by a Registration Statement,
or (b) if the Initial Securities were not previously rated, cause the Securities
covered by a Registration Statement to be rated with the appropriate rating
agencies, if so requested by holders of a majority in aggregate principal amount
of Securities covered by this Agreement and the Other Registration Rights
Agreements covered by the Shelf Registration Statement (provided that Holders of
Common Stock issued upon the conversion of the Initial Securities shall be
deemed to be Holders of the aggregate principal amount of Initial Securities
from which such Common Stock was converted), or by the managing underwriters, if
any.
(q) In the event that any broker-dealer registered under the Exchange Act
shall underwrite any Securities or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution" (within the meaning
of the Conduct Rules (the "RULES") of the National Association of Securities
Dealers, Inc. ("NASD")) thereof, whether as a Holder of such Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, the Company will assist such broker-dealer in complying
with the requirements of such Rules, including, without limitation, by (i) if
such Rules, including Rule 2720, shall so require, engaging a "qualified
independent underwriter" (as defined in Rule 2720) to participate in the
preparation of the Shelf Registration Statement relating to such Securities, to
exercise usual standards of due diligence in respect thereto and, if any portion
of the offering contemplated by such Registration Statement is an underwritten
offering or is made through a placement or sales agent, to recommend the yield
of such Securities, (ii) indemnifying any such qualified independent underwriter
to the extent of the indemnification of underwriters provided in Section 5
hereof and (iii) providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the requirements of the
Rules.
(r) The Company shall use its best efforts to take all other steps
necessary to effect the registration of the Securities covered by a Registration
Statement contemplated hereby.
3. Registration Expenses. (a) All expenses incident to the Company's
performance of and compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement is ever filed or becomes
effective, including without limitation;
(i) all registration and filing fees and expenses;
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(ii) all fees and expenses of compliance with federal securities and
state "blue sky" or securities laws;
(iii) all expenses of printing (including printing certificates for
the Securities to be issued and printing of Prospectuses), messenger and
delivery services and telephone;
(iv) all fees and disbursements of counsel for the Company;
(v) all application and filing fees in connection with listing the
Securities on a national securities exchange or automated quotation system
pursuant to the requirements hereof; and
(vi) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special audit
and comfort letters required by or incident to such performance).
The Company will bear its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and expenses
of any person, including special experts, retained by the Company.
(b) In connection with the Shelf Registration Statement required by this
Agreement, the Company will reimburse each Purchaser and the Holders of
Securities covered by the Shelf Registration Statement, for their portion of the
reasonable fees and disbursements of not more than one counsel, designated,
collectively, by the Holders of a majority in principal amount of the Securities
covered by this Agreement and the Other Registration Rights Agreements that are
covered by the Shelf Registration Statement (provided that Holders of Common
Stock issued upon the conversion of the Initial Securities shall be deemed to be
Holders of the aggregate principal amount of Initial Securities from which such
Common Stock was converted) to act as counsel for the Holders in connection
therewith. Each Holder shall pay all fees and disbursements of its counsel other
than as set forth in the preceding sentence and all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
such Holder's Securities pursuant to the Shelf Registration Statement.
4. Indemnification. (a) The Company agrees to indemnify and hold harmless
each Holder and each person, if any, who controls such Holder within the meaning
of the Securities Act or the Exchange Act (each Holder, and such controlling
persons are referred to collectively as the "INDEMNIFIED Parties") from and
against any losses, claims, damages or liabilities, joint or several, or any
actions in respect thereof to which each Indemnified Party may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Shelf Registration Statement or Prospectus including any document incorporated
by reference therein, or in any amendment or supplement thereto or in any
preliminary prospectus relating to the Shelf Registration, or arise out of, or
are based upon, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and shall reimburse, as incurred, the Indemnified Parties for
any legal or other expenses reasonably incurred by them in
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connection with investigating or defending any such loss, claim, damage,
liability or action in respect thereof; provided, however, that (i) the Company
shall not be liable in any such case to the extent that such loss, claim, damage
or liability arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in the Shelf Registration
Statement or Prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to the Shelf Registration in reliance upon and
in conformity with written information pertaining to such Holder and furnished
to the Company by or on behalf of such Holder specifically for inclusion therein
and (ii) with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus relating to the Shelf
Registration Statement, the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Holder (or a person controlling such
Holder) from whom the person asserting any such losses, claims, damages or
liabilities purchased the Securities concerned, to the extent that a prospectus
relating to such Securities was required to be delivered by such Holder under
the Securities Act in connection with such purchase and any such loss, claim,
damage or liability of such Holder results from the fact that there was not sent
or given to such person, at or prior to the written confirmation of the sale of
such Securities to such person, a copy of the final prospectus if the Company
had previously furnished copies thereof to such Holder; provided further,
however, that this indemnity agreement will be in addition to any liability
which the Company may otherwise have to such Indemnified Party. The Company
shall also indemnify underwriters, brokers or dealers participating in the
distribution of the Securities, if any, their officers and directors and each
person who controls such persons within the meaning of the Securities Act or the
Exchange Act to the same extent as provided above with respect to the
indemnification of the Holders of the Securities if requested by such Holders.
(b) Each Holder, severally and not jointly, will indemnify and hold
harmless the Company, its officers and directors and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act from and against any losses, claims, damages or liabilities or any actions
in respect thereof, to which the Company or any such person may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Shelf Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to the Shelf Registration, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact necessary to make the statements therein not misleading, but in
each case only to the extent that the untrue statement or omission or alleged
untrue statement or omission was made in reliance upon and in conformity with
written information pertaining to such Holder and furnished to the Company by or
on behalf of such Holder specifically for inclusion therein; and, subject to the
limitation set forth immediately preceding this clause, shall reimburse, as
incurred, the Company for any legal or other expenses reasonably incurred by the
Company or any such person in connection with investigating or defending any
loss, claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability which such Holder may otherwise
have to the Company or any of such persons.
(c) Promptly after receipt by an indemnified party under this Section 4 of
notice of the commencement of any action or proceeding (including a governmental
investigation), such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section 4, notify the
indemnifying party of the commencement thereof; but the
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omission so to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, also be counsel to
the indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 4 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action, and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 4 is unavailable
or insufficient to hold harmless an indemnified party under subsections (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in subsection (a) or (b)
above in such proportion as is appropriate to reflect the relative fault of the
indemnifying party or parties on the one hand and the indemnified party on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect thereof) as well
as any other relevant equitable considerations. The relative fault of the
parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or such Holder or such other indemnified party, as the case may
be, on the other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any action
or claim which is the subject of this subsection (d). Notwithstanding any other
provision of this Section 4(d), the Holders shall not be required to contribute
any amount in excess of the amount by which the net proceeds received by such
Holders from the sale of the Securities pursuant to the Shelf Registration
Statement exceeds the amount of damages which such Holders have otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who
controls such indemnified party within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as such indemnified
party and each person, if any, who controls the Company
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within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as the Company.
(e) The agreements contained in this Section 4 shall survive the sale of
the Securities pursuant to the Shelf Registration Statement and shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
5. Additional Interest Under Certain Circumstances. If the Shelf
Registration Statement is not declared effective by the Commission within 90
days after the date hereof, then on the 91st day after the date hereof, the
Company shall make a cash payment to the Holders of the Initial Securities equal
to $9.086 for each $1,000 principal amount of the Initial Securities held. If
the Shelf Registration Statement is not declared effective by the Commission
within 120 days after the date hereof, then on the 121st day after the date
hereof (or the 5th day after the date on which such Shelf Registration Statement
ceases to be effective or usable by each Purchaser for any reason for any period
other than any Permitted Blackout Period (as defined below)) and on each date
which is 30 days after any such date, the Company shall make a cash payment to
the Holders of the Initial Securities equal to $12.1147 for each $1,000
principal amount of the Initial Securities held, until such time as the Shelf
Registration Statement shall be declared effective by the Commission or is
otherwise available for use by the Holders to publicly resell the Securities, at
which time the Company's obligation to make such cash payments shall cease. No
additional interest shall be payable on the Initial Securities due to any delay
in having the Shelf Registration Statement declared effective by the Commission.
"PERMITTED BLACKOUT PERIOD" means a period (not to be more than two in any
period of 365 days) of up to 30 days (whether consecutive or cumulative)
resulting from (x) the filing of a post-effective amendment to the Shelf
Registration Statement to incorporate annual audited financial information with
respect to the Company where such post-effective amendment is not yet effective
and needs to be declared effective to permit Holders to use the related
prospectus or (y) other material events, with respect to the Company that would
need to be described in such Shelf Registration Statement or the related
prospectus and, in the case of clause (y), the Company is proceeding promptly
and in good faith to amend or supplement the Shelf Registration Statement and
related prospectus to describe such events as required by paragraph 2(h)
hereof).
6. Rules 144 and 144A. The Company shall use its best efforts to file the
reports required to be filed by it under the Securities Act and the Exchange Act
in a timely manner and, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder, make publicly available other
information so long as necessary to permit sales of their securities pursuant to
Rules 144 and 144A. The Company covenants that it will take such further action
as any Holder may reasonably request, all to the extent required from time to
time to enable such Holder to sell Transfer Restricted Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rules 144 and 144A (including the requirements of Rule 144A(d)(4)).
The Company will provide a copy of this Section 6 of this Agreement to
prospective purchasers of Securities identified to the Company by each Purchaser
upon request. Upon the request of any Holder, the Company shall deliver to such
Holder a written statement as to whether it has complied with such requirements.
Notwithstanding the
10
foregoing, nothing in this Section 6 shall be deemed to require the Company to
register any of its securities pursuant to the Exchange Act.
7. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by the Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("MANAGING UNDERWRITERS") will be selected by
the holders of a majority in aggregate principal amount of such Transfer
Restricted Securities, covered by this Agreement and the Other Registration
Rights Agreements, to be included in such offering (provided that Holders of
Common Stock issued upon the conversion of the Initial Securities shall be
deemed to be Holders of the aggregate principal amount of Initial Securities
from which such Common Stock was converted).
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the persons entitled hereunder to approve such arrangements and (ii) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
8. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure by the
Company to comply with its obligations under Section 1 hereof may result in
material irreparable injury to each Purchaser or the Holders for which there is
no adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, each
Purchaser or any Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Sections 1 hereof. The
Company further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not on or after the date
of this Agreement enter into any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof. No person other than (i) the Holders and
(ii) Asarco Incorporated (which has exercised its contractual right to request
the registration of 7,125,000 shares under the Securities Act for public resale)
is entitled to include any securities in the Shelf Registration Statement.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except by the Company and the written
consent of the Holders of a majority in principal amount of the Securities
covered by this Agreement and the Other Registration Rights Agreements, taken as
a whole, affected by such amendment, modification, supplement, waiver or
consents (provided that Holders of Common Stock issued upon the conversion of
the Initial Securities shall be deemed to be Holders of the aggregate principal
11
amount of Initial Securities from which such Common Stock was converted).
Without the consent of each Purchaser together with all Other Purchasers under
the Purchase Agreements, then holding Initial Securities, however, no
modification may change the provisions relating to the payment of additional
interest pursuant to Section 5 hereof.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current address
given by such Holder to the Company.
(2) if to a Purchaser, at the address provided for such Purchaser on
Annex A hereto or at the most current address given by such Purchaser to
the Company if another address is so given;
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
(3) if to the Company, at its address as follows:
Coeur d'Xxxxx Xxxxx Corporation
000 Xxxxx Xxxxxx, X.X. Xxx X
Xxxxx x'Xxxxx, Xxxxx 00000-0000
Attention: General Counsel
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the next business day, if sent by overnight air courier
guaranteeing next day delivery.
(e) Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and each Purchaser, on the other hand, and shall have the right to enforce
such agreements directly to the extent they may deem such enforcement necessary
or advisable to protect their rights or the rights of Holders
12
hereunder. Each Holder, by its acquisition of Securities, shall be deemed to
have agreed to the provisions of Section 4(b) hereof.
(f) Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
By the execution and delivery of this Agreement, the Company submits to
the nonexclusive jurisdiction of any federal or state court in the State of New
York.
(j) Severability. If any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(k) Securities Held by the Company. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Securities is required
hereunder, Securities held by the Company or its affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date above first written.
THE COMPANY: COEUR D'XXXXX XXXXX CORPORATION
By:
--------------------------------------
Name:
Title:
[PURCHASER]
By:
--------------------------------------
Name:
Title:
ANNEX A
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF NOTES PURCHASE PRICE
----------------------------- ------------------------- --------------
A-1
