REGISTRATION RIGHTS AGREEMENT
-----------------------------
AGREEMENT made as of October 25, 1995 by and between Atlas
Corporation, a Delaware corporation ("Atlas"); and Independence Mining
Company Inc., a Delaware corporation ("Independence").
WITNESSETH:
Atlas and Independence are parties to a Purchase and Sale
Agreement dated October 25, 1995 (the "Purchase Agreement"). In order
to induce Independence to consummate the transactions under the
Purchase Agreement, Atlas has agreed to provide the registration
rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the Closing under the Purchase
Agreement. Certain capitalized terms used herein and not otherwise
defined are defined in Section 7 hereof.
The parties hereto agree as follows:
1. SHELF REGISTRATION. (a) Atlas shall: (i) as promptly
------------------
as possible following the date hereof file a Shelf Registration
Statement providing for resales of Registrable Securities by
Independence (the "Shelf Registration"); (ii) use its best efforts to
cause such Shelf Registration Statement to be declared effective as
promptly as is possible; and (iii) use its best efforts to keep the
Shelf Registration Statement continuously effective under the
Securities Act with respect to the Registrable Securities until
October 25, 1998, or, if sooner, until the Shares no longer constitute
Registrable Securities. Atlas shall supplement or amend the Shelf
Registration Statement as necessary to comply with the Securities Act
and the rules and regulations thereunder, the rules, regulations or
instructions applicable to the registration form used by Atlas, or any
other law, rule or regulation applicable thereto. Atlas shall pay all
Registration Expenses (as defined in Section 4) incurred in connection
with the Shelf Registration.
(b) In the event that Atlas becomes ineligible to file
a shelf registration statement on behalf of Independence, or the Shelf
Registration filed by Atlas on Independence's behalf becomes
ineffective as a means of registering the Registrable Securities, at
any time after October 25, 1996 and at Independence's request Atlas
shall register the sale of all or part of the Registrable Securities.
Atlas shall be required to file only one registration statement to
effect the foregoing.
2. PIGGYBACK REGISTRATIONS.
-----------------------
(a) RIGHT TO PIGGYBACK. Whenever on or prior to
------------------
October 25, 1998 Atlas proposes to register any of its securities
under the Securities Act to be issued in an underwritten public
offering by Atlas (other than pursuant to the Shelf Registration) and
the registration form to be used may be used for the registration of
Registrable Securities (a "Piggyback Registration"), Atlas will give
prompt written notice to Independence of its intention to effect such
a registration and will include in such registration all Registrable
Securities requested for inclusion therein by Independence.
(Page 57 of 64 pages)
(b) PIGGYBACK EXPENSES. The Registration Expenses
------------------
related to the Registrable Securities in any Piggyback Registration
will be paid by Atlas.
(c) PRIORITY ON REGISTRATIONS. If the managing
-------------------------
underwriters of a Piggyback Registration advise Atlas in writing that
in their sole discretion the number of securities requested to be
included in such offering exceeds the number which can be sold in such
offering such that the offering will be materially adversely affected,
the number of securities to be offered will be reduced as recommended
in writing by the managing underwriters. Atlas will include
securities in such registration according to the following priority:
(i) the securities Atlas proposes to sell, and (ii) the Registrable
Securities requested to be included in such registration and other
securities requested to be included in such registration by holders of
Parity Registration Rights, allocated among the holders of Registrable
Securities and such other holders in proportion, as nearly as
practicable, to the respective number of shares of Common Stock
proposed to be sold in such offering by them.
(d) SELECTION OF UNDERWRITERS. Atlas may select the
-------------------------
investment banker(s) and manager(s) for any offering pursuant to a
Piggyback Registration.
(e) OTHER REGISTRATIONS. If Atlas has previously
-------------------
filed a registration statement with respect to Registrable Securities
pursuant to this Section 2, and if such previous registration has not
been withdrawn or abandoned, Atlas will not file or cause to be
effected any other registration of any of its equity securities or
securities convertible or exchangeable into or exercisable for its
equity securities under the Securities Act (except on Form X-0,
Xxxx X-0 or any successor form), whether on its own behalf or at the
request of any holder or holders of such securities, until a period of
at least three months has elapsed from the effective date of such
previous registration, unless a shorter period of time is approved by
the holders of a majority of the Registrable Securities included in
such previous registration.
3. REGISTRATION PROCEDURES. In connection with any
-----------------------
registration pursuant to Section 1 hereof, whenever Independence has
requested that any Registrable Securities be registered pursuant to
this Agreement, Atlas will use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance
with the intended method of disposition thereof and pursuant thereto
Atlas will as expeditiously as possible:
(a) furnish to each Seller of Registrable Securities
such number of copies of such registration statement, each amendment
and supplement thereto, the prospectus included in such registration
statement (including each preliminary prospectus) and such other
documents as such Seller may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by it;
(b) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of
such jurisdictions as Independence reasonably requests and do any and
all other acts and things which may be reasonably necessary or
advisable to enable each Seller of Registrable Securities to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such Seller, provided
-2-
(Page 58 of 64 pages)
that Atlas will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required
to qualify but for this subsection, (ii) subject itself to taxation in
any such jurisdiction or (iii) consent to general service of process
in any such jurisdiction except to the extent required by applicable
law;
(c) notify each Seller of Registrable Securities, at
any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any event as a
result of which the prospectus included in such registration statement
contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading, and, at the
request of any such Seller, Atlas will prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not
contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(d) cause all such Registrable Securities to be listed
on each securities exchange on which similar securities issued by
Atlas are then listed;
(e) provide a transfer agent and registrar for all
such Registrable Securities;
(f) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other
actions as Independence reasonably requests in order to expedite or
facilitate the disposition of such Registrable Securities; provided,
however, that in the event of any underwritten offering, Independence
will be responsible for the reasonable fees and disbursements of one
counsel to Atlas for such counsel's review of the underwriting
agreement to the extent such fees and disbursements exceed $2,500 up
to a maximum amount of $20,000;
(g) make available for inspection by any Seller of
Registrable Securities, any underwriter participating in any
disposition pursuant to such registration statement, and any attorney,
accountant or other agent retained by any such Seller or underwriter,
all financial and other records, pertinent corporate documents and
properties of Atlas, and cause Atlas' officers, directors, employees
and independent accountants to supply all information reasonably
requested by any such Seller, underwriter, attorney, accountant or
agent in connection with such registration statement; and
(h) obtain a cold comfort letter from Atlas'
independent public accountants in customary form and covering such
matters of the type customarily covered by cold comfort letters
(provided that such Registrable Securities constitute at least 10% of
the securities covered by such registration statement).
Independence agrees that, upon receipt of any notice from
Atlas of the happening of any event of the kind described in
Section 3.1(c) hereof, Independence will forthwith discontinue
disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until Independence's
receipt of written notice
-3-
(Page 59 of 64 pages)
that sales may continue with the existing prospectus or the
supplemented or amended prospectus contemplated by Section 3(c)
hereof. In the event Independence is not able to commence sales of
Shares pursuant to an effective registration statement not later than
60 days after the date of a notice pursuant to Section 3(c) (the
"Notice Date"), Atlas shall pay to Independence an amount per share
equal to the difference (but only if the price in (ii) is less than
the price in (i)), if any, between (i) the actual sales price
subsequently received from any sales by Independence during a number
of days following the date on which such sales become permissible
which is equal to the number of days over 60 during which such sales
were not allowed and (ii) the average of (A) the closing sales prices
on any national securities exchange or the NASDAQ National Market
System on which the Common Stock is listed or included, or (B) the
average of the bid and asked prices on NASDAQ if not so listed or
included for the days in excess of 60 from the Notice Date (such
average closing sales prices or average bid and asked price, as the
case may be, being referred to as the "Deemed Sales Price"), plus
interest calculated on the Deemed Sales Price from the 61st day after
the Notice Date to the date of any actual sale at the rate of 12% per
annum.
4. REGISTRATION EXPENSES.
---------------------
(a) All expenses incident to Atlas' performance of or
compliance with this Agreement, including, without limitation, all
registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery
expenses, and fees and disbursements of counsel for Atlas and all
independent certified public accountants, underwriters (excluding
discounts and commissions) and other Persons retained by Atlas (all
such expenses being herein called "Registration Expenses"), will be
borne as provided in this Agreement, except that Atlas will, in any
event, pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal
or accounting duties), the expense of any annual audit or quarterly
review, the expense of any liability insurance and the expenses and
fees for listing the securities to be registered on each securities
exchange on which similar securities issued by Atlas are then listed.
(b) In connection with each registration of
Registrable Securities, Atlas will reimburse Independence for the
reasonable fees and disbursements of one counsel chosen by
Independence to the extent such fees and disbursements exceed $2,500
up to a maximum of $25,000.
5. INDEMNIFICATION.
---------------
(a) Atlas agrees to indemnify Independence, its
officers and directors and any person who controls Independence within
the meaning of the Securities Act against all losses, claims, damages,
liabilities and expenses (including legal fees and other expenses
incurred in defending any such claim or action) caused by any untrue
or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided that Atlas
shall not be liable in any such case to
-4-
(Page 60 of 64 pages)
the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based
upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such
preliminary prospectus, prospectus, amendment or supplement in
reliance upon and in conformity with information furnished to Atlas in
writing by Independence specifically for use therein. If the
indemnification provided for in this Section 5 is unavailable to or
insufficient to hold harmless Independence in respect of any losses,
claims, damages, or liabilities (or actions in respect thereof)
referred to therein, then Atlas shall contribute to the amount paid or
payable to Independence as a result of such losses, claims, damages,
or liabilities (or actions in respect thereof) in such proportion as
is appropriate to reflect the relative fault of Atlas and Independence
in connection with the statements or omissions which resulted in such
losses, claims, damages, or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative fault 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 Atlas or Independence and the
parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission.
(b) Independence agrees to indemnify and hold Atlas and any
person who controls Atlas within the meaning of the Securities Act
harmless (in the same manner and to the same extent as set forth in
Section 5(a)) with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any
preliminary prospectus, prospectus, or any amendment or supplement
thereto, if such statement or alleged statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to Atlas by Independence specifically for use
therein.
6. PARTICIPATION IN REGISTRATIONS. No Person may
------------------------------
participate in any registration hereunder unless such Person:
(a) in the case of a registration which is
underwritten, agrees to sell such Person's Registrable Securities on
the basis provided in any underwriting arrangements approved by Atlas;
(b) as expeditiously as possible, notifies Atlas, at
any time when a prospectus relating to such Person's Registrable
Securities is required to be delivered under the Securities Act, of
the happening of any event involving such Person as a result of which
such prospectus contains an untrue statement of a material fact or
omits any fact necessary to make the statements therein not
misleading;
(c) complies with all reasonable requests made by
Atlas or its counsel with respect to the registration of such Person's
Registrable Securities, including, without limitation, providing
access to all relevant books and records; and
(d) completes, executes and delivers all
questionnaires, powers of attorney, indemnities, underwriting
agreements and other usual and customary documents
-5-
(Page 61 of 64 pages)
necessary or appropriate with respect to the offering of such Person's
Registrable Securities, and in the case of a registration which is
underwritten, necessary or appropriate under the terms of such
underwriting arrangements.
7. DEFINITIONS.
-----------
(a) "Affiliate" shall have the meaning ascribed to it
---------
in Rule 12b-2 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the rules and regulations of the SEC as in
effect on the date hereof.
(b) "Parity Registration Rights" means the right to
--------------------------
register securities of Atlas which, by the terms of the agreement or
instrument granting such rights, are on a parity with the rights of
Independence under this Agreement.
(c) "Person" shall mean any individual, firm,
------
corporation, trust, partnership, or other entity and, with respect to
Persons holding Registrable Securities, shall include any group
comprised of any Person and any other Person with whom such Person or
an Affiliate of such Person has any agreement, arrangement or
understanding, directly or indirectly, for the purpose of acquiring,
holding, voting or disposing of any Common Stock.
(d) "Common Stock" means collectively, Atlas' common
------------
stock, par value $1.00 per share.
(e) "Registrable Securities" means (i) the Shares, and
----------------------
(ii) any securities issued or issuable with respect to the Shares by
way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or
other reorganization. As to any particular Registrable Securities,
such securities will cease to be Registrable Securities when they have
ceased to be "restricted securities" as that term is defined by Rule
144 of the Securities Act. For purposes of this Agreement, a Person
will be deemed to be a holder of Registrable Securities whenever such
Person has the right to acquire such Registrable Securities (by
conversion or otherwise, but disregarding any legal restrictions upon
the exercise of such right), whether or not such acquisition has
actually been effected.
(f) "Seller" means any Person whose Registrable
------
Securities are included in a Shelf or Piggyback Registration.
(g) "Shares" means 1,400,000 shares of unregistered
------
Common Stock issued to Independence by Atlas pursuant to the Purchase
Agreement.
(h) "Shelf Registration Statement" shall mean a
----------------------------
"shelf" registration statement of Atlas pursuant to the provisions of
Section 1 of this Agreement which covers any of the Registrable
Securities, on an appropriate form under Rule 415 under the Securities
Act, or any similar rule that may be adopted by the Commission, and
all amendments and supplements to such registration statement,
including post-effective amendments, in each case
-6-
(Page 62 of 64 pages)
including the prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
(i) Unless otherwise stated, other capitalized terms
contained herein have the meanings set forth in the Purchase
Agreement.
8. MISCELLANEOUS.
-------------
(a) NO INCONSISTENT AGREEMENTS. Atlas will not
--------------------------
hereafter enter into any agreement with respect to its securities
which is inconsistent with the rights granted to Independence in this
Agreement.
(b) REMEDIES. Any Person having rights under any
--------
provision of this Agreement will be entitled to enforce such rights
specifically, to recover damages caused by reason of any breach of any
provision of this Agreement and to exercise all other rights granted
by law.
(c) AMENDMENTS AND WAIVERS. Except as otherwise
----------------------
provided herein, the provisions of this Agreement may be amended and
Atlas may take any action herein prohibited, or omit to perform any
act herein required to be performed by it, only if Atlas has obtained
the written consent of Independence, for so long as Independence is a
holder of Registrable Securities, and, at any other time, of the
holders of 60% of the Registrable Securities.
(d) SUCCESSORS AND ASSIGNS. All covenants and
----------------------
agreements in this Agreement by or on behalf of any of the parties
hereto will bind and inure to the benefit of the respective successors
and assigns of the parties hereto whether so expressed or not. In
addition, whether or not any express assignment has been made, the
provisions of this Agreement which are for the benefit of purchasers
or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(e) INCORPORATION OF PURCHASE AGREEMENT PROVISIONS.
----------------------------------------------
The Sections entitled "Notices", "Severability," "Counterparts,"
"Headings," "Entire Agreement," and "Governing Law" in the Purchase
Agreement are hereby incorporated in this Agreement by reference and
made a part hereof.
-7-
(Page 63 of 64 pages)
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
ATLAS CORPORATION
By: Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Title: President
INDEPENDENCE MINING COMPANY INC.
By: Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
-8-
(Page 64 of 64 pages)
