EXHIBIT 99(b)
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT"), dated as of March
20, 2003, is by and between Coeur d'Xxxxx Xxxxx Corporation, an Idaho
corporation (the "COMPANY") and Houlihan, Lokey, Xxxxxx & Zukin (the "HOLDER").
RECITALS
WHEREAS, the Holder provided certain financial advisory services to the
Company in connection with the offering of the Company's 9% Convertible Senior
Subordinated Notes (the "9% Notes").
WHEREAS, the Company has agreed to pay and the Holder has agreed to
receive, as partial compensation for the Holder's financial advisory services,
647,966 shares of common stock, par value $1.00, of the Company (the
"SECURITIES").
AGREEMENT
NOW, THEREFORE, the Company agrees to provide for the benefit of the
Holder, for as long as it owns any of the Securities and until such time as
such Securities have been sold pursuant to a Shelf Registration Statement (as
defined below), 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 Holder
as a selling security holder therein) (the "SHELF REGISTRATION STATEMENT")
relating to the offer and sale of the Transfer Restricted Securities (as defined
below) by the Holder 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"). "TRANSFER RESTRICTED SECURITIES" means the Securities
until (i) the date on which such Securities has been effectively registered
under the Securities Act and disposed of in accordance with the Shelf
Registration Statement, (ii) the date on which such Securities are 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 Holder of the
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 the Holder of the
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 the Holder, 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 shall use reasonable efforts to reflect in each such document, when
so filed with the Commission, such comments as the Holder reasonably may
propose; and (ii) include the name of the Holder who proposes to sell Securities
pursuant to the Shelf Registration Statement as a selling securityholder.
(b) The Company shall give written notice to the Holder 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;
(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
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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 the Holder, 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
the Holder, 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 the Holder 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 Holder 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 the 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 the Shelf Registration Statement; provided, however, that the Company
shall not be required to (i) qualify generally to do business in any
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 Holder of the Securities to
facilitate the timely preparation and delivery of certificates representing the
Securities to be sold pursuant to the Shelf Registration Statement free of any
restrictive legends and in such denominations and registered in such names as
the Holder 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 the Holder 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
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the Holder 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 the Holder 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 the Holder 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 the Holder that the Shelf Registration Statement is effective and
that no supplement or amendment is required.
(i) 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.
(j) The Company may require the Holder of the 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 if the Holder fails to furnish such information within a reasonable
time after receiving such request.
(k) 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 Holder during the Shelf Registration Period) and take all such
other actions, if any, as the Holder shall reasonably request in order to
facilitate the disposition of the Securities pursuant to the Shelf Registration.
(l) The Company shall (i) make reasonably available for inspection by the
Holder, any underwriter participating in any disposition pursuant to the Shelf
Registration Statement and any attorney, accountant or other agent retained by
the Holder 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 Holder 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.
(m) The Company, if requested by the Holder or the managing underwriter,
if any, shall cause (i) its counsel to deliver an opinion and updates thereof
relating to the Securities in
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customary form addressed to the Holder 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(k) 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(k) hereof; the
compliance as to form of the Shelf Registration Statement and any documents
incorporated by reference therein with the requirements of the Securities Act;
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 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 Holder 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.
(n) 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 the Shelf 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.
(o) The Company shall use its best efforts to take all other steps
necessary to effect the registration of the Securities covered by the Shelf
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 the Shelf 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 the Holder for the reasonable fees and
disbursements of one counsel in connection herewith. The 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 the Holder's Securities pursuant to
the Shelf Registration Statement.
4. Indemnification. (a) The Company agrees to indemnify and hold harmless
the Holder and each person, if any, who controls the 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 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 the Holder and furnished to the Company
by or on behalf of the 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 the Holder (or a person controlling the 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
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by the Holder under the Securities Act in connection with the purchase and any
such loss, claim, damage or liability of the 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 the 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 Holder of the Securities if requested by the Holder.
(b) The Holder 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 the Holder and furnished to the Company by or on behalf of the 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 the 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 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
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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 the 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 Holder shall not be required to contribute
any amount in excess of the amount by which the net proceeds received by the
Holder from the sale of the Securities pursuant to the Shelf Registration
Statement exceeds the amount of damages which the Holder has 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 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. 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 the 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 the Holder may reasonably request, all to the extent required from time to
time to
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enable the 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 the Holder upon request.
Upon the request of the Holder, the Company shall deliver to the Holder a
written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 5 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
6. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by the Shelf Registration Statement 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 jointly by the Holder and the Company
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.
7. 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 the Holder 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, the 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 Holder in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the Holder
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 Holder, (ii) the
purchasers of the 9% Notes 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
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hereof may not be given, except by the Company and the written consent of the
Holder of the Securities covered by this Agreement, affected by such amendment,
modification, supplement, waiver or consents.
(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 the Holder, at its address as follows:
Houlihan, Lokey, Xxxxxx & Xxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention:
(2) 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) Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
(f) 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.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
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(h) 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.
(i) 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.
[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:
HOULIHAN, LOKEY, XXXXXX & ZUKIN
By:
-----------------------
Name:
Title:
