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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of November 19, 1999 by and
between Chief Consolidated Mining Company, an Arizona corporation (the
"Company"), and Dimeling Xxxxxxxxx & Park, a Pennsylvania general partnership
("Investor").
R E C I T A L S:
WHEREAS, the Company and Investor are parties to that certain Stock
Purchase Agreement, dated as of November 19, 1999 (the "Stock Purchase
Agreement"), pursuant to which the Company has agreed to sell to Investor, and
Investor has agreed to purchase, certain amounts of Convertible Common Stock par
value $.50 per share ("Convertible Common Stock") of the Company;
WHEREAS, the Company has issued a warrant to the Investor, dated as of
November 19, 1999, which warrant is exercisable for the shares of Convertible
Common Stock specified therein ("Warrant");
WHEREAS, the Company's Convertible Common Stock is convertible into the
Company's Common Stock par value $.50 per share ("Common Stock") on a share for
share basis; and
WHEREAS, the Company wishes to grant to Investor registration rights in
its Common Stock, exercisable upon Investor's conversion of its Convertible
Common Stock.
NOW, THEREFORE, for and in consideration of the foregoing, the mutual
covenants and agreements contained herein and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
Section 1. Definitions and Usage.
A. Definitions. The terms defined in this Section, wherever
used in this Agreement, shall, unless the context otherwise requires, have the
respective meanings hereinafter specified.
"Affiliate" shall be defined by reference to the Stock Purchase
Agreement definition of "Affiliate".
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"Agreement" shall mean this Registration Rights Agreement.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Company" shall mean Chief Consolidated Mining Company, an Arizona
corporation, and any successor corporation by merger, consolidation or otherwise
and any parent corporation resulting from the merger or consolidation of the
Company with or into a subsidiary of another corporation.
"Demand Registration Request" shall mean a written notice from Investor
requesting that the Company file a Registration Statement with respect to a
Public Offering pursuant to Section 2.A in which Investor advises the Company as
to the number of shares of Common Stock that Investor wishes to include in the
applicable Registration and in which Investor agrees to (i) the specified method
of distribution, (ii), in the case of an underwritten Public Offering, the
designated managing underwriter, and (iii) agrees to provide to the Company all
such information as may be required by the Company pursuant to Section 6 herein.
"Effective Period" shall mean such period as shall be required under
the provisions of the Securities Act and the Securities Act Rules for delivery
of a prospectus meeting the requirements of Section 10(a) of the Securities Act
to any Person purchasing Common Stock in connection with a Public Offering;
provided, however, that such period shall not include any delivery requirement
with respect to the distribution by an underwriter of its unsold allotment
relating to an underwritten Public Offering.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, as the same shall be in effect at the date of any determination to be
made hereunder.
"Exchange Act Rules" shall mean the rules and regulations promulgated
by the Commission under the Exchange Act, as the same shall be in effect at the
date of any determination to be made hereunder.
"Investor" shall include Dimeling, Xxxxxxxxx & Park, a Pennsylvania
general partnership ("DSP") or any assignee of shares of Convertible Common
Stock or Common Stock theretofore held by DSP and permitted under Section 16(a)
hereof (other than any assignee who acquires such shares of Common Stock
pursuant to a Public Offering); provided, however, that any such assignee has
agreed to be bound by the provisions of this Agreement in accordance with
Section 16 herein.
"Notice of Intent to File" shall mean written notice from the Company
to the Investor of the Company's intent to file a Registration Statement in
accordance with Section 2 or 3 herein.
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"Person" shall mean an individual, a corporation, a partnership, a
trust, an unincorporated organization or a government or any agency or political
subdivision thereof.
"Piggy Back Registration Request" shall mean a written notice given by
Investor pursuant to the provisions of Section 3.B herein, in which Investor
advises the Company as to the number of shares of Common Stock that Investor
wishes to include in the applicable Registration and in which Investor agrees to
(i) the specified method of distribution, (ii) in the case of an underwritten
Public Offering, the designated managing underwriter, and (iii) provides to the
Company all such information as may be required by the Company pursuant to
Section 6 herein.
"Registrable Shares" shall mean shares of Common Stock owned of record
by the Investor, into which (i) shares of Convertible Common Stock owned of
record by the Investor or (ii) shares of Convertible Common Stock underlying the
Warrant owned by the Investor are convertible, and as to which such Investor has
the right to request Registration pursuant to the provisions of Sections 2 or 3.
"Registration" shall mean the registration under the registration
provisions of the Securities Act of the offering, sale and delivery of shares of
Common Stock.
"Registration Expenses" shall mean the expenses associated with the
preparation and filing of any registration statement pursuant to Section 2 or 3
herein and any sale covered thereby (including the reasonable fees and expenses
of legal counsel to Investor, fees related to blue sky qualifications and filing
fees in respect of the National Association of Securities Dealers, Inc.), but
excluding underwriting discounts or commissions in respect of shares of Common
Stock to be sold by Investor.
"Registration Period" shall mean the period of time from the decision
of the Company to prepare and file a Registration Statement to and including the
effective date of such Registration Statement.
"Registration Statement" shall mean a registration statement filed on
Form X-0, X-0, X-0, XX-0, XX-0, or 10-SB (or any successor form) under the
registration provisions of the Securities Act and the Securities Act Rules.
"Securities Act" shall mean the Securities Act of 1933, as amended, as
the same shall be in effect at the date of any determination to be made
hereunder.
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"Securities Act Rules" shall mean the rules and regulations promulgated
by the Commission pursuant to the Securities Act, as the same shall be in effect
at the date of any determination to be made hereunder.
B. Rules of Construction. Unless the context otherwise
requires, as used in this Agreement: (a) a term has the meaning ascribed to it;
(b) "or" is not exclusive; (c) "including" means "including without limitation;"
(d) words in the singular include the plural; (e) words in the plural include
the singular; (f) words applicable to one gender shall be construed to apply to
each gender; (g) the terms "hereof," "herein," "hereby," "hereto" and derivative
or similar words refer to this entire Agreement; and (h) the term "Section"
shall refer to the specified Section of this Agreement.
Section 2. Demand Registration Rights.
A. Demand Registration Request. At any time, but not more than a total
of three times during the period the Investor holds Registrable Shares or
Convertible Common Stock or the Warrant, the Investor has the right, to deliver
a Demand Registration Request to the Company. .
B. Required Registration Obligation. Upon receipt of a Demand
Registration Request made pursuant to Section 2.A, the Company shall, subject to
the provisions of Section 4, deliver to Investor a Notice of Intent to File and
prepare as promptly as practicable and file a Registration Statement with
respect to the distribution in accordance with the applicable method of
distribution of the Registrable Shares to be included therein, and the Company
shall use its best efforts to cause the Registration Statement to become
effective under the Securities Act in accordance with the Securities Act Rules.
Section 3. "Piggy Back" Registration Rights.
A. Notice of Intent to File. If the Company at any time proposes to
file a Registration Statement (other than for a distribution for the account of
Investor) under the Securities Act relating to an underwritten Public Offering
of Common Stock that would permit the inclusion therein of shares of Common
Stock to be distributed in accordance with the method of distribution
contemplated by such Registration Statement, the Company shall give to the
Investor a Notice of Intent to File promptly after a determination has been made
by the Company to prepare and file such Registration Statement, but in any event
not less than 90 days before the filing with the Commission of such Registration
Statement, which notice shall set forth the intended method of distribution
(including the name of the managing underwriter) of and the amount and class of
the securities proposed to be registered. The Notice of Intent to File shall
include an offer to include in such filing, subject to the other provisions of
this Agreement, such amount of Registrable Shares as an Investor may request.
B. Piggy Back Registration Request. If an Investor wishes to have
Registrable Shares registered pursuant to this Section, it shall advise the
Company by giving a Piggy Back
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Registration Request within 60 days after the date of receipt of the Notice of
Intent to File setting forth the amount of Registrable Shares for which
Registration is requested.
C. Registration Obligation. Subject to the provisions of Section 4, the
Company shall include all Registrable Shares specified in the Piggy Back
Registration Request.
D. Underwriting Agreement. Any obligation of the Company to include
Registrable Shares of Investor in a Registration Statement prepared and filed
pursuant to this Section shall be conditioned upon the agreement of an Investor
to enter into an underwriting agreement with the Company, other security
holders, if any, and the managing underwriter of the distribution, if
applicable.
Section 4. Conditions to Registration Obligations.
A. Suspension or Termination of Obligations. The Company's obligations
herein to prepare and file a Registration Statement and to seek its
effectiveness shall be subject to the following provisions:
i. The Company shall be required to file no more than an
aggregate of three (3) Registration Statements pursuant to Demand
Registration Requests granted in Section 2 hereof.
ii. The Company's obligations to prepare, file and seek
effectiveness of a Registration Statement in response to a Demand
Registration Request under Section 2 or Piggy Back Registration Request
under Section 3 shall be suspended:
(a) in any case, during the period from the time that
it receives a Demand Registration Request from Investor under
Section 2 or it gives a Notice of Intent to File under Section
3, until 90 days (or such shorter period as to which the
managing underwriter, if any, of the distribution to which the
such Registration Statement relates shall consent in writing)
have lapsed following the effective date of such Registration
Statement under the Securities Act; provided, however, that
(x) such Notice of Intent to File is given prior to the time
of receipt by the Company of a Demand Registration Request by
the Investor and (y) that the Company shall use its best
efforts to cause such Registration Statement to be declared
effective as promptly as practicable; and provided further
that the obligation to file a Registration Statement on behalf
of the Investor shall be reinstated if the Company does not
file such Registration Statement within 30 days after giving
the Notice of Intent to File or 60 days after receipt of a
Demand Registration Request;
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(b) in any case, if at the time of receipt by the
Company of a Demand Registration Request, the Company has
material inside information as to which it believes it has a
valid business purpose in refraining from disclosing publicly
for the time being and that current public disclosure of such
information would have a material adverse effect on the
Company, for a period commencing with the date of receipt of
the Demand Registration Request and ending on the earlier of
(x) 60 days after such receipt of the Registration Request;
(y) the public announcement of such material inside
information; or (z) the date on which the Company gives the
Investor who issued the Demand Registration Request a notice
that suspension of its obligation is no longer required;
provided, however, that the same material inside information
shall not constitute a basis for continuation of this
suspension period.
B. Inclusion of Registerable Shares. A Registration Statement
filed pursuant to a Demand Registration Request herein shall first include all
Registrable Shares requested to be included by the Investor and, only after such
inclusion, may include Common Stock being sold for the account of the Company or
any other security holders. Any Common Stock to be offered on behalf of the
Company or such other security holders will be included in such Registration
Statement only to the extent that, in the reasonable opinion of the managing
underwriter for an Underwritten Public Offering of Registrable Shares on behalf
of Investor, such inclusion will not materially adversely affect the
distribution of Registrable Shares on behalf of an Investor.
C. Reduction of Piggy Back Shares. If in the event of a Piggy
Back Registration Request, the managing underwriter of the proposed distribution
shall advise the Company in writing that, in the reasonable opinion of such
managing underwriter, the inclusion in the Registration Statement of the
aggregate number of shares of Common Stock requested by Investor to be included
in the distribution would materially adversely affect such distribution, then
the Company shall so advise the Investor and the number of such shares of Common
Stock included in the Registration Statement shall be reduced to the number
acceptable to such managing underwriter.
D. Right to Select Underwriter. The Investor shall have the
right to select an underwriter for an underwritten public offering of
Registrable Shares made in response to a Demand Registration Request.
E. Right to Withdraw. For purposes of this Section, if a
requested Registration Statement is filed, and the Company otherwise complies
with its obligations hereunder, and
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i. the Registration Statement is withdrawn with the consent of
the Investor as a result of a delay in the offering requested by the
Company, then no requested Registration Statement shall be deemed to
have been filed; or
ii. the Investor ceases to prosecute the Registration actively
and in good faith for a period of sixty days or more, the Company shall
have the right to withdraw the Registration Statement without the
consent of the Investor and the requested Registration Statement shall
be deemed to have been filed.
Section 5. Registration Procedures. If the Company is required by the
provisions of Section 2 or 3 to effect the Registration of any of the
Registrable Shares, the Company shall, as expeditiously as possible:
A. Prepare and file with the Commission a Registration Statement with
respect to such shares of Common Stock and use its best efforts to cause such
Registration Statement to become and remain effective, and to ensure compliance
of the prospectus contained therein with Section 10(a) of the Securities Act for
the Effective Period.
B. Prepare and file with the Commission during the Registration Period
such amendments and supplements to such Registration Statement and the
prospectus used in connection therewith as may be necessary to permit such
Registration Statement to become effective in accordance with the Securities Act
and the Securities Act Rules and to ensure that such Registration Statement and
the prospectus used in connection therewith comply with the disclosure standards
of Sections 10 and 11 of the Securities Act and comply with the standards of
Section 10(b) of the Exchange Act in each case during the Effective Period.
C. Furnish Investor (i) such number of copies of such Registration
Statement and of each amendment and supplement thereto (in each case including
all exhibits), such number of copies of the prospectus included in such
Registration Statement (including each preliminary prospectus, summary
prospectus and prospectus supplement), in conformity with the requirements of
the Securities Act, and such other documents, as Investor may reasonably require
in order to facilitate the offering, sale and delivery or other disposition of
the Registrable Shares owned by Investor and (ii), during the Registration
Period and the Effective Period, copies of any written correspondence or
memoranda relating to oral communications in each case with the Commission and
copies of any request by the Commission for any amendment of or supplement to
the Registration Statement or the prospectus included therein or for additional
information.
D. Use its best efforts to register or qualify the Common Stock covered
by such Registration Statement under the securities or blue sky laws of such
jurisdictions as the managing underwriter of such distribution may reasonably
request (excluding, however, any jurisdiction in which the filing would subject
the Company to additional tax liability and any
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jurisdiction in which the Company would thereby be required to execute a general
consent to service of process) and use all reasonable efforts to do such other
acts and things as may be required to enable Investor to consummate the public
sale or other disposition in such jurisdictions of the Registrable Shares owned
by Investor.
E. Make available to Investor an earnings statement covering the period
of at least 12 months, but not more than 18 months, beginning with the first
month after the effective date of the Registration Statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act.
F. Notify Investor immediately if the Company shall become aware at any
time during the Effective Period that the prospectus included in the
Registration Statement, as such prospectus may be amended or supplemented,
includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary in order to make the statements
therein not misleading in light of the circumstances then existing, and at the
request of the Investor to prepare promptly and to furnish to Investor such
number of copies of an amended or supplemental prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such Registrable Shares, such
prospectus shall not include an 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 not misleading in the light of the circumstances
then existing.
G. Enter into such agreements (including an underwriting agreement) in
customary form and containing customary provisions relating to legal opinions
and accountants' letters, representations and warranties and mutual
indemnification and contribution between the Company and the underwriters for
the Investor and use all reasonable efforts to take such other actions as
Investor may reasonably request in order to expedite or facilitate the
disposition of such Registrable Shares.
H. Make available for inspection by Investor, by any underwriter
participating in any distribution to be effected pursuant to such Registration
Statement and by any attorney, accountant or other agent retained by the
Investor or any such underwriter all pertinent financial and other records,
pertinent corporate documents and properties of the Company and cause all of the
Company's officers, directors and employees to supply all such information
requested by Investor, such underwriter, attorney, accountant or agent, as is
reasonably needed in connection with such Registration.
Section 6. Expenses; Limitations on Registration. The Registration Expenses
relating to any Registration effected by the Company pursuant to this Agreement
shall be for the account of the Company.
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For purposes of this Section, the Company shall be obligated to pay the
fees and expenses of only one law firm representing the Investor.
Section 7. Investor Information. Investor shall provide all information
reasonably requested by the Company for inclusion in any Registration Statement
to be filed hereunder. The actual provision of such information shall be a
condition precedent to the obligation of the Company to take any action pursuant
to this Agreement in respect of the Registration of Registrable Shares of an
Investor.
Section 8. Indemnification.
A. In connection with the Registration of any Registrable Shares under
the Securities Act pursuant to this Agreement, the Company agrees to indemnify
and hold harmless Investor, its partners, directors, officers and employees, and
each other Person, if any, who controls Investor within the meaning of Section
15 of the Securities Act, against any losses, claims, damages or liabilities,
joint or several, to which such Investor or any such partner, director, officer,
employee or controlling Person may become subject under the Securities Act or
any other statute or at common law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or any alleged untrue statement of a material fact
contained in the Registration Statement or the prospectus included therein at
the time the Registration Statement is declared effective or any omission or
alleged omission of a material fact required to be stated therein or necessary
in order to make the statements therein not misleading or (ii) any untrue
statement of a material fact or alleged untrue statement of a material fact
contained in the Registration Statement, any preliminary prospectus, the
prospectus included therein or any amendment or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or
necessary in order to make the statements concerning the Company therein, in the
light of the circumstances under which they were made, not misleading and shall
reimburse Investor and each such partner, director, officer, employee and
controlling Person for any legal or other expenses reasonably incurred by an
Investor or such partner, director, officer employee or controlling Person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company shall not be liable in
any such case to the extent that any 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 such Registration Statement, preliminary
prospectus, prospectus, or amendment or supplement in reliance upon and in
conformity with written information furnished by or on behalf of Investor to the
Company expressly for use therein; and provided, further, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission in any preliminary
prospectus if such untrue statement or alleged untrue statement or omission or
alleged omission was corrected in the final prospectus included in the
Registration Statement at the time it became
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effective and Investor, in the case of a Distribution Public Offering, or the
managing underwriter, in the case of an Underwritten Public Offering, failed to
provide the final prospectus as required by the Securities Act and the
Securities Act Rules. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of Investor or any such
partner, director, officer, employee or controlling Person, and shall survive
the transfer of such securities by Investor.
B. Investor agrees to indemnify and hold harmless the Company, its
directors, officers and employees, each other Person, if any, who controls the
Company against any losses, claims, damages or liabilities, joint or several, to
which the Company, any such director, officer or employee, any such controlling
Person may become subject under the Securities Act or any other statute or at
common law, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon (i) any untrue statement or
any alleged untrue statement of a material fact contained in the Registration
Statement or the prospectus included therein at the time the Registration
Statement is declared effective or any omission or alleged omission of a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading or (ii) any untrue statement of a material
fact or alleged untrue statement of a material fact contained in the
Registration Statement, any preliminary prospectus, the prospectus included
therein or any amendment or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein or necessary in order
to make the statements concerning the Company therein, in the light of the
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that such alleged untrue statement or alleged
omission was made in such Registration Statement, preliminary prospectus,
prospectus, amendment or supplement in reliance upon and in conformity with
written information furnished by or on behalf of Investor to the Company
expressly for use therein, and shall reimburse the Company or such director,
officer, employee or other Person for any legal or any other expenses reasonably
incurred in connection with investigating or defending any such loss, claim,
damage, liability or action.
C. Promptly after receipt by an indemnified party hereunder of written
notice of the commencement of any action or proceeding involving a claim
referred to in Subsections (A) and (B) of this Section, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party,
give written notice to the latter of the commencement of such action; provided,
that the failure of any indemnified party to give notice as provided herein
shall not relieve the indemnifying party of its obligation under this Subsection
C to the extent the indemnifying party is not materially prejudiced by such
failure. In case any such action is brought against an indemnified party, the
indemnified party shall permit the indemnifying party to assume the defense of
such action or proceeding, provided that counsel for the indemnifying party, who
shall conduct the defense of such action or proceeding, shall be approved by the
indemnified party (whose approval shall not be unreasonably withheld) and the
indemnified party may participate in such defense (in which case, such
participation shall be at such
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indemnified party's expense, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified party and the
indemnifying party shall exist in respect of such claim, in which event the
indemnifying party shall pay the reasonable fees and expense of separate counsel
for the indemnified party). No indemnifying party shall consent to entry of any
judgment or enter into any settlement that does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect to such claim or litigation. The
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm for all indemnified parties. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent.
D. Indemnification similar to that specified in the preceding
Subsections of this Section shall be given by the Company and Investor (with
such modifications as shall be appropriate) with respect to liability related to
any required registration or other qualification of Registrable Shares under any
Federal or state law or regulation of governmental authority other than the
Securities Act.
E. If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under Subsection (A) or
(B) above, then the indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in Subsection (A) or (B) above, in such proportion as is
appropriate to reflect the relative fault of the Company, on the one hand, and
an Investor, on the other, in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equity 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 the Company or Investor and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and Investor agree that
it would not be just and equitable if contributions pursuant to this Subsection
(E) were to be determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the first sentence of this Subsection (E). 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 (E) 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
shall be limited as provided in Subsection (C) above if the indemnifying party
has assumed the defense of any such action in accordance with the provisions
thereof) which is the subject of this Subsection (E). Notwithstanding the
provisions of this Subsection (E), in respect of any loss, claim, damage or
liability based upon any untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact which relates to
information other than information supplied by Investor, Investor shall not be
required to contribute any amount in
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excess of the amount by which the total price at which the Registrable Shares
offered by it and distributed to the public exceeds the amount of any damages
which an Investor 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. Promptly after receipt by an
indemnified party under this Subsection (E) of notice of the commencement of any
action against such party in respect of which a claim for contribution may be
made against an indemnifying party under this Subsection (E), such indemnified
party shall notify the indemnifying party in writing of the commencement thereof
if the notice specified in Subsection (C) above has not been given with respect
to such action; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party under
this Subsection (E) to the extent such omission is not prejudicial.
Section 9. Public Availability of Information. The Company shall comply
with all public information reporting requirements of the Commission, to the
extent required from time to time to enable Investor to sell Registrable Shares
without Registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or (ii) any similar rule or regulation hereafter
adopted by the Commission. Upon the request of Investor, the Company will
deliver to Investor a written statement as to whether it has complied with such
requirements.
Section 10. Supplying Information. The Company shall cooperate with
Investor in supplying such information as may be necessary for Investor to
complete and file any information reporting forms presently or hereafter
required by the Commission as a condition to the availability of an exemption
from the Securities Act for the sale of any Registrable Shares.
Section 11. Specific Performance. Each party hereto acknowledges and
agrees that each other party hereto would be irreparably harmed and would have
no adequate remedy of law if any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
Accordingly, it is agreed that, in addition to any other remedies by law or in
equity which may be available, the parties hereto shall be entitled to obtain
preliminary and permanent injunctive relief with respect to any breach or
threatened breach of, or otherwise obtain specific performance of the covenants
and other agreements contained in this Agreement.
Section 12. Representations and Warranties of the Company. The Company
represents and warrants to Investor that, as of the date of this Agreement, (a)
the Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Arizona and has the corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder, (b) the execution and delivery of this Agreement by the Company and
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the consummation by the Company of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of the
Company and no other corporate proceedings on the part of the Company are
necessary to authorize this Agreement or any of the transactions contemplated
hereby, and (c) this Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company, is
enforceable against the Company in accordance with its terms, subject to
applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance and similar laws affecting creditors' rights generally from time to
time and to general principles of equity, and except as the enforceability
thereof may be limited by considerations of public policy.
Section 13. Representations and Warranties of Investor. Investor
represents and warrants to the Company that, as of the date of this Agreement,
(a) it is a general partnership duly organized, validly existing and in good
standing under the laws of the Commonwealth of Pennsylvania and has the
organizational power and authority to enter into this Agreement and to carry out
its obligations hereunder, (b) the execution and delivery of this Agreement by
Investor and the consummation by Investor of the transactions contemplated
hereby have been duly authorized by all necessary organizational action on the
part of Investor and no other organizational proceedings on the part of Investor
are necessary to authorize this Agreement or any of the transactions
contemplated hereby, and (c) this Agreement has been duly executed and delivered
by Investor and constitutes a valid and binding obligation of Investor and,
assuming that this Agreement constitutes a valid and binding obligation of the
Company, is enforceable against Investor in accordance with its terms, subject
to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance and similar laws affecting creditors' rights generally from time to
time and to general principles of equity, and except as the enforceability
thereof may be limited by considerations of public policy.
Section 14. Expiration. This Agreement and the rights, benefits, duties
and obligations hereunder of the parties hereto and their successors and
permitted assigns shall expire and be of no further force or effect on the date
Investor no longer holds any Registrable Shares.
Section 15. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally or
transmitted by telex, telegram or facsimile transmission or mailed by registered
or certified mail (return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(a) if to the Company, to:
Chief Consolidated Mining Company
Executive Offices
000 Xxxxx Xxxxxx, Xxxxx 0000
14
New York, New York 10010-1099
Attention: Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxx, P.C.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
(b) if to Investor, to:
Dimeling, Xxxxxxxxx & Park
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxx Xxxxx Xxxx & XxXxxx LLP
0000 Xxx Xxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
Section 16. Benefit and Assignment.
(a) The terms and conditions of this Agreement shall inure to
the benefit of and be binding on the parties hereto and their
respective successors and permitted assigns; provided, however, that,
except as otherwise provided in this Section 16, this Agreement shall
not be assignable by any party hereto except by operation of law or
with the prior express written consent of the other parties hereto.
Nothing in this Agreement, express or implied, is intended to confer
upon any party, other than the parties hereto, their respective
successors and permitted assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement. A permitted assignee
of Investor is an Affiliate of Investor or any partner of Investor or
its Affiliates; or an assignee to which the Company has consented,
which consent shall not be unreasonably withheld and which
15
shall be deemed granted if the Company has not refused in writing to
consent within fifteen (15) days of receipt of Investor's notice to the
Company of a proposed assignment.
(b) If Investor shall transfer and assign shares of Common
Stock to any Person in accordance with Section 16(a) otherwise than in
Public Offering, Investor (or any Person who shall be a transferee or
assignee pursuant to subsection (a)), as the case may be, may assign
such portion of its rights and benefits under this Agreement as is
necessary to permit such transferee to act in the stead of Investor
hereunder; provided, however, that such Person shall agree in writing
to be bound by the duties and obligations of Investor hereunder.
Section 17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania
without regard for principles of conflicts of laws. Each party hereby
irrevocably submits to the exclusive jurisdiction and venue of the Courts of the
Commonwealth of Pennsylvania and the County of Philadelphia and/or the United
States District Court for the Eastern District of Pennsylvania, and appellate
courts from any thereof, in connection with any action, suit or other proceeding
arising out of or relating to this Agreement and, with respect to any such
action, suit or other proceeding, waives any objection which such party may have
at any time to the laying of venue of any such action, suit or proceeding and
any objection which such party may have that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum, and each
such party further waives personal service of any summons, complaint or other
process and agrees that service thereof may be made by certified or registered
mail directed to such party at its respective address set forth herein, or by
such other means as may be appropriate pursuant to applicable law.
Section 18. Counterparts. This Agreement may be executed in any number
of counterparts, which together shall constitute a single agreement.
Section 19. Effective Date. This Agreement shall become effective upon
the date of the Tranche A Closing, as defined in the Stock Purchase Agreement.
In the event that the Stock Purchase Agreement is terminated prior to the
Tranche A Closing, this Agreement shall become null and void.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their officers thereunto duly authorized on the date first
above written.
CHIEF CONSOLIDATED MINING COMPANY DIMELING, XXXXXXXXX & PARK
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------- -------------------------
Name: Xxxxxxx Xxxxx Name: Xxxxxxx X. Xxxxxxxx
Title: President Title: Partner
