SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the
Securities and Exchange Act of 1934
Date of Report (Date of earliest event reported): October 15, 1997
COEUR D'ALENE MINES CORPORATION
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(Exact name of registrant as specified on its charter)
IDAHO 1-8641 82-0109423
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(State or other jurisdiction of Commission (I.R.S. Employer
incorporation or organization) File Number: Ident.No.)
400 Coeur d'Alene Mines Bldg.
505 Front Avenue
P. O. Box I, Coeur d'Alene, Idaho 83814
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(Address of principal executive (Zip Code)
offices)
Registrant's telephone number, including area code: (208) 667-3511
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Not Applicable
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(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS
On October 15, 1997, Coeur d'Alene Mines Corporation (the "Company")
consummated the sale of $143,750,000 principal amount of its 7 1/4%
Convertible Subordinated Debentures due 2005 (the "Debentures") to Lazard
Freres & Co. LLC (the "Purchaser") pursuant to the terms of a Purchase
Agreement, dated as of October 7, 1997, between the Company and the Purchaser
(the "Purchase Agreement"). That amount includes $18,750,000 principal amount
of the Debentures sold by the Company upon the Purchaser's exercise of an
over-allotment option.
The offering of Debentures was not registered under the Securities Act of
1933 (the "Act") and the Debentures were sold only to "qualified institutional
buyers" in reliance upon Rule 144A under the Act and in offshore transactions
in accordance with Regulation S under the Act and may not be offered or sold
in the United States absent registration under, or the availability of an
exception from the registration requirements of, the Act.
The Debentures are convertible into shares of common stock, par value
$1.00 per share, of the Company (the "Common Stock") on or before October 31,
2005, unless previously redeemed, at a conversion price of $17.45 per share,
subject to adjustment in certain events. The Debentures are redeemable, in
whole or in part, at any time on and after October 31, 2000 at the redemption
prices set forth in the Indenture, dated as of October 15, 1997, (the
"Indenture") between the Company and Bankers Trust Company, as trustee (the
"Trustee"), plus accrued interest. The Debentures are required to be
repurchased at the option of the holder if a "Designated Event" (as defined in
the Indenture) occurs at 100% of their principal amount plus accrued interest.
The Debentures are unsecured and subordinate in right of payment to all Senior
Debt (as defined in the Indenture) and are also effectively subordinated to
liabilities of the Company's subsidiaries.
Pursuant to a Registration Rights Agreement, dated as of October 15,
1997, between the Company and the Purchaser, the Company is obligated to file
with the Securities and Exchange Commission, and to use its best efforts to
cause to become effective, a shelf registration statement covering resales of
the Debentures and the shares of Common Stock issuable upon conversion thereof
and to maintain the effectiveness of such registration statement until October
31, 1999, subject to adjustment in certain circumstances.
The Company plans to use approximately $42.9 million of the estimated
$138,942,500 net proceeds of the sale of Debentures to repay bank indebtedness
and to use the balance of the net proceeds for other corporate purposes,
including the possible acquisition of or investment in additional silver and
gold mining properties or businesses.
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<PAGE>
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits The following exhibits are filed
herewith:
<TABLE>
<CAPTION>
Exhibit
Number Description
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<S> <C>
4 Indenture, dated as of October 15,
1997, between the Registrant and
Bankers Trust Company, as Trustee,
relating to the Registrant's 7 1/4%
Convertible Subordinated Debentures
due 2005
10(a) Purchase Agreement, dated as of
October 7, 1997, between the
Registrant and Lazard Freres & Co.
LLC
10(b) Registration Rights Agreement,
dated as of October 15, 1997,
between the Registrant and Lazard
Freres & Co. LLC
99(a) Press Release of the Registrant,
dated October 8, 1997
99(b) Press Release of the Registrant,
dated October 15, 1997
</TABLE>
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
COEUR D'ALENE MINES CORPORATION
(Registrant)
Dated: October 15, 1997
By:/s/JAMES A. SABALA
-------------------------
James A. Sabala
Senior Vice President and
Chief Financial Officer
4
EXHIBIT 4
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INDENTURE
DATED AS OF OCTOBER 15, 1997
BETWEEN
COEUR D'ALENE MINES CORPORATION
AND
BANKERS TRUST COMPANY
TRUSTEE
-------------------
7 1/4% CONVERTIBLE SUBORDINATED DEBENTURES
DUE 2005
---------------------
<PAGE>
=========================================================================
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions....................................................1
SECTION 1.02. Incorporation by Reference of Trust
Indenture Act................................................6
SECTION 1.03. Rules of Construction..........................................6
ARTICLE II
THE SECURITIES
SECTION 2.01. Form of Securities and Dating..................................7
SECTION 2.02. Execution and Authentication ... ..............................8
SECTION 2.03. Registrar, Paying Agent, Conversion
Agent, Depository and Securities
Custodian ..................................8
SECTION 2.04. Paying Agent To Hold Money in Trust ...........................9
SECTION 2.05. Securityholder Lists..........................................10
SECTION 2.06. Transfer and Exchange.........................................10
SECTION 2.07. Replacement Securities........................................15
SECTION 2.08. Outstanding Securities........................................16
SECTION 2.09. Treasury Securities...........................................16
SECTION 2.10. Temporary Securities..........................................16
SECTION 2.11. Cancelation...................................................17
SECTION 2.12. Defaulted Interest............................................17
ARTICLE III
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3
REDEMPTION
SECTION 3.01. Notices to Trustee ...........................................17
SECTION 3.02. Selection of Securities To Be Redeemed........................17
SECTION 3.03. Notice of Redemption..........................................18
SECTION 3.04. Effect of Notice of Redemption ...............................19
SECTION 3.05. Deposit of Redemption Price...................................19
SECTION 3.06. Securities Redeemed in Part ..................................19
ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Securities.........................................19
SECTION 4.02. SEC Reports...................................................20
SECTION 4.03. Compliance Certificate........................................20
SECTION 4.04. Stay, Extension and Usury Laws................................20
SECTION 4.05. Liquidation...................................................21
SECTION 4.06. Reservation of Shares of Common Stock
for Issuance Upon Conversion................................21
SECTION 4.07. Rule 144A Information Requirement.............................21
ARTICLE V
SUCCESSORS
SECTION 5.01. When Company May Merge, etc. .................................22
SECTION 5.02. Successor Corporation Substituted.............................22
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.............................................23
SECTION 6.02. Acceleration..................................................25
SECTION 6.03. Other Remedies................................................25
SECTION 6.04. Waiver of Past Defaults.......................................25
SECTION 6.05. Control by Majority...........................................26
SECTION 6.06. Limitation on Suits...........................................26
SECTION 6.07. Rights of Holders To Receive Payment..........................26
SECTION 6.08. Collection Suit by Trustee....................................27
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4
SECTION 6.09. Trustee May File Proofs of Claim..............................27
SECTION 6.10. Priorities....................................................27
SECTION 6.11. Undertaking for Costs.........................................28
ARTICLE VII
TRUSTEE
SECTION 7.01. Duties of Trustee.............................................28
SECTION 7.02. Rights of Trustee.............................................29
SECTION 7.03. Individual Rights of Trustee..................................30
SECTION 7.04. Trustee's Disclaimer..........................................30
SECTION 7.05. Notice of Defaults............................................30
SECTION 7.06. Reports by Trustee to Holders.................................30
SECTION 7.07. Compensation and Indemnity....................................31
SECTION 7.08. Replacement of Trustee........................................31
SECTION 7.09. Successor Trustee by Merger, etc..............................33
SECTION 7.10. Eligibility; Disqualification.................................33
SECTION 7.11. Preferential Collection of Claims
Against Company.............................................33
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations..........................33
SECTION 8.02. Application of Trust Money....................................34
SECTION 8.03. Repayment to Company..........................................34
SECTION 8.04. Reinstatement.................................................35
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without Consent of Holders....................................35
SECTION 9.02. With Consent of Holders.......................................35
SECTION 9.03. Compliance with Trust Indenture Act...........................36
SECTION 9.04. Revocation and Effect of Consents ............................36
SECTION 9.05. Notation on or Exchange of Securities ........................37
SECTION 9.06. Trustee Protected.............................................37
<PAGE>
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ARTICLE X
CONVERSION
SECTION 10.01. Conversion Privilege.........................................37
SECTION 10.02. Conversion Procedure.........................................38
SECTION 10.03. Fractional Shares............................................39
SECTION 10.04. Taxes on Conversion..........................................39
SECTION 10.05. Company To Provide Stock.....................................39
SECTION 10.06. Adjustment for Dividends and
Distributions of Common Stock..............................40
SECTION 10.07. Adjustment for Rights Issue..................................40
SECTION 10.08. Adjustment for Other Distributions...........................41
SECTION 10.09. Adjustment for Subdivision of Common
Stock......................................................41
SECTION 10.10. Adjustment for Reclassification of
Common Stock...............................................42
SECTION 10.11. [Intentionally Omitted]......................................42
SECTION 10.12. When Adjustment May Be Deferred..............................42
SECTION 10.13. When No Adjustment Required..................................42
SECTION 10.14. Notice of Adjustment.........................................43
SECTION 10.15. Voluntary Reduction..........................................43
SECTION 10.16. Notice of Certain Transactions...............................43
SECTION 10.17. Reorganization of Company....................................44
SECTION 10.18. Company Determination Final..................................44
SECTION 10.19. Trustee's Disclaimer.........................................44
ARTICLE XI
SUBORDINATION OF SECURITIES
SECTION 11.01. Securities Subordinate to Senior Debt........................45
SECTION 11.02. No Payments When Senior Debt in Default;
Payment Over of Proceeds upon
Dissolution, Etc...........................................45
SECTION 11.03. Trustee to Effectuate Subordination..........................48
SECTION 11.04. Trustee Not Charged With Knowledge
of Prohibition.............................................49
SECTION 11.05. Rights of Trustee as Holder of
Senior Debt................................................49
SECTION 11.06. Article Applicable to Paying Agent...........................49
ARTICLE XII
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6
RIGHT TO REQUIRE REPURCHASE
SECTION 12.01. Right To Require Repurchase..................................49
SECTION 12.02. Notice; Method of Exercising Repurchase
Right......................................................50
SECTION 12.03. Certain Definitions..........................................51
SECTION 12.04. Compliance with Rule 13e-4...................................52
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls.................................53
SECTION 13.02. Notices......................................................53
SECTION 13.03. Communication by Holders with Other
Holders....................................................54
SECTION 13.04. Certificate and Opinion as to Conditions
Precedent..................................................54
SECTION 13.05. Statements Required in Certificate or
Opinion....................................................54
SECTION 13.06. Rules by Trustee and Agents..................................55
SECTION 13.07. Legal Holidays...............................................55
SECTION 13.08. No Recourse Against Others...................................55
SECTION 13.09. Counterparts.................................................55
SECTION 13.10. Governing Law................................................55
SECTION 13.11. No Adverse Interpretation of Other
Agreements.................................................55
SECTION 13.12. Successors...................................................55
SECTION 13.13. Severability.................................................55
SECTION 13.14. Table of Contents, Headings, Etc.............................56
SIGNATURE....................................................................56
Exhibit A...................................................................A-1
Exhibit B...................................................................B-1
Exhibit C-I.................................................................C-1
Exhibit C-II................................................................C-3
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7
CROSS-REFERENCE TABLE*
Trust Indenture
Act section Indenture Section
310(a)(1)................................................................. 7.10
(a)(2)
(a)(2)..................................................................7.10
(a)(3)..................................................................N.A.
(a)(4)..................................................................N.A.
(b).......................................................7.08; 7.10; 13.02
(c).....................................................................N.A.
311(a)..................................................................7.11
x (b).....................................................................7.11
(c).................................................................... N.A.
312(a).....................................................................2.05
(b)....................................................................13.03
(c)................................................................... 13.03
313(a).....................................................................7.06
(b)(1)..................................................................N.A.
(b)(2)..................................................................7.06
(c)(3)......................................................... 7.06; 13.02
(d).....................................................................7.06
314(a).............................................................4.02; 13.02
(b).....................................................................N.A.
(c)(1).................................................................13.04
(c)(2).................................................................13.04
(c)(3)..................................................................N.A.
(d).....................................................................N.A.
(e)....................................................................13.05
(f).................................................................... N.A.
315(a)...............................................................7.01(b)
(b).............................................................7.05; 13.02
(c)..................................................................7.01(a)
(d)..................................................................7.01(c)
(e).....................................................................6.11
316(a)(last sentence)......................................................2.09
(a)(1)(A)...............................................................6.05
(a)(1)(B)...............................................................6.04
(a)(2) N.A.
(b).....................................................................6.07
317(a)(1)..................................................................6.08
(a)(2)..................................................................6.09
(b).....................................................................2.04
318(a)....................................................................13.01
N.A. means not applicable.
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* This Cross-Reference Table is not part of the Indenture.
<PAGE>
INDENTURE dated as of October 15, 1997, between COEUR
D'ALENE MINES CORPORATION, a corporation duly
organized and existing under the laws of the State of
Idaho (the "Company"), having its principal office at
505 Front Street, Coeur d'Alene, Idaho 83814, and
BANKERS TRUST COMPANY, a banking corporation duly
organized and validly existing under the laws of the
State of New York, as Trustee (the "Trustee"), having
its principal office at 4 Albany Street, New York,
New York 10006.
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Company's 7 1/4%
Convertible Subordinated Debentures due 2005 (the "Securities"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
"AFFILIATE" of any specified person means any other person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified person. For
the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlled by" and "under common
control with"), when used with respect to any person, shall mean
the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such person,
whether through the ownership of voting securities by agreement
or otherwise.
"AGENT" means any Registrar, Paying Agent, Conversion Agent
or co-Registrar.
"BENEFICIAL HOLDER" shall mean each participant in
<PAGE>
the Depository who holds an interest in a security, as
indicated in the Participants List.
"BOARD OF DIRECTORS" means the Board of Directors of the
Company or any authorized committee of the Board.
<PAGE>
"CAPITAL STOCK" means any and all shares, interests,
participations or other equivalents (however designated) of
corporate stock.
"CHANGE IN CONTROL" means as provided in Section 12.03.
"COMMON STOCK" means Common Stock of the Company as it
exists on the date of this Indenture or as it may be constituted
from time to time.
"COMPANY" means the party named as such above until a
successor replaces it in accordance with Article V and thereafter
means the successor.
"CONVERSION AGENT" means the party named in Section 2.03.
"CONVERSION DATE" means the date on which the Holder
satisfies all the requirements of paragraph 9 of the Securities.
"CORPORATE TRUST OFFICE" shall mean the principal office of
the Trustee at which at any particular time its corporate trust
business shall be administered which office at the date of the
execution of this Indenture is located at Four Albany Street, New
York, New York 10006, Attention: Corporate Trust and Agency Group
or at any other time at such other address as the Trustee may
designate from time to time by notice to the Company and
Securityholders.
"CURRENT MARKET PRICE" means (a) for purposes of Section
10.03 the last reported sales price of the Common Stock (as
reported by the New York Stock Exchange Composite Tape) on the
last trading day prior to the Conversion Date and (b) for
purposes of Sections 10.07, 10.08 and 12.03, the average of the
last reported sales prices of the Common Stock (as reported by
the New York Stock Exchange Composite Tape) for 15 consecutive
trading days commencing 25 trading days before the date in
question.
"DEBT" means (i) all indebtedness of the Company for
borrowed money, (ii) all indebtedness of the Company which is
evidenced by a note, debenture, bond
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or other similar instrument (including capitalized lease and
purchase money obligations), (iii) all indebtedness of the
Company (including capitalized lease obligations) incurred,
assumed or given in the acquisition (whether by way of purchase,
merger or otherwise) of any business, real property or other
assets (except assets acquired in the ordinary course of the
acquiror's business).
"DEFAULT" means any event which is, or after notice or
passage of time would be, an Event of Default.
"DEFINITIVE SECURITY" means as provided in Section 2.01.
"DEPOSITORY" means, with respect to the Global Security, the
person specified in Section 2.03 as the Depository with respect
to the Global Security, until a successor shall have been
appointed and become such pursuant to the applicable provisions
of this Indenture, and, thereafter, "Depository" shall mean or
include such successor.
"DESIGNATED EVENT" means as provided in Section 12.03.
"DESIGNATED SENIOR DEBT" means (a) the Facility Agreement
between Coeur Australia PTY Limited, the Company and Rothschild
Australia Limited dated as of September 16, 1997 and (b) the Loan
Agreement dated December 23, 1996 among the Company, NM
Rothschild & Sons Limited and Bayerische Vereinsbank AG. (as the
Banks) and NM Rothschild Limited (as the Agent for the Banks), as
the same may be amended from time to time.
"EVENT OF DEFAULT" means as provided in Section 6.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"GLOBAL SECURITY" means as provided in Section 2.01.
"HOLDER" or "SECURITYHOLDER" means a person in
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whose name a Security is registered on the securities Register.
"INDENTURE" means this Indenture as amended from time to
time.
"LEGAL HOLIDAY" means as provided in Section 13.07.
"NASDAQ" means the National Association of Securities
Dealers Automated Quotation System.
"OFFICER" means Chairman of the Board, the President, any
Vice President, the Treasurer, the Secretary, any Assistant
Treasurer or any Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by two
Officers, one of whom must be the Chairman of the Board, the
President, the Treasurer or a Vice- President of the Company.
"OPINION OF COUNSEL" means a written opinion from legal
counsel which may be an employee of or counsel to the Company or
the Trustee.
"PARTICIPANTS LIST" means the position listings showing
persons that have a beneficial interest in the Global Security
held by the Depository and the amount of such interest, to the
extent it is made available to the Trustee.
"PAYING AGENT" means the party named in Section 2.03.
"PERSON" means any individual, corporation, partnership,
joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
"PRINCIPAL" of a debt security means the principal of the
security plus the premium, if any, on the security.
"REDEMPTION DATE" means the date on which
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Securities are redeemed by the Company pursuant to Article III.
"REDEMPTION PRICE" means the amount paid by the Company to
redeem a Security, as determined in paragraph 6 of the
Securities.
"REGISTRAR" means the party named in Section 2.03.
"REPURCHASE DATE" means as provided in Section 12.01.
"RESTRICTED SECURITY" means any Security that bears or is
required to bear the legend set forth in Section 2.06(b).
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the securities described above issued
under this Indenture in the form of Exhibits A and B hereto.
"SECURITIES CUSTODIAN" means Bankers Trust Company, as
custodian with respect to the Global Security or any successor
entity thereto.
"SECURITIES REGISTER" means as provided in Section 2.03.
"SENIOR DEBT" means the principal of (and premium, if any)
and interest on and other amounts due on any indebtedness,
whether outstanding on the date of execution of this Indenture or
thereafter created, incurred, assumed or guaranteed by the
Company for money borrowed from others (including, for this
purpose, all obligations incurred under capitalized leases or
purchase money mortgages) or in connection with the acquisition
by it or a Subsidiary of any other business or entity, and, in
each case, all renewals, extensions and refundings thereof, other
than (a) any such indebtedness as to which, in the instrument
creating or evidencing the same, it is provided that such
indebtedness is not superior in right of payment to the
Securities, (b) indebtedness of the Company to any Affiliate, (c)
the Securities and (d) the Company's
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<PAGE>
(i) 6% Convertible Subordinated Debentures Due 2002 and (ii) 6_%
Convertible Subordinated Debentures Due 2004. Senior Debt shall
include, but shall not be limited to, Designated Senior Debt.
"SIGNIFICANT SUBSIDIARY" means a "significant subsidiary" as
defined in Rule 1-02 of Regulation S-X under the Securities Act
of 1933, as amended, and the Exchange Act (as such Regulation is
in effect on the date hereof) except that any subsidiary the
common stock of which is listed on a national securities exchange
or authorized for quotation on the National Market System of
NASDAQ (at present or at any future relevant time) (a "Public
Subsidiary"), and any subsidiary of a Public Subsidiary, shall be
deemed not to be a Significant Subsidiary.
"SUBSIDIARY" of any specified person means a corporation
more than 50% of the outstanding voting stock of which is owned,
directly or indirectly, by the Company or by one or more other
subsidiaries, or by the Company and one or more other
subsidiaries. For the purposes of this definition, "voting stock"
means stock which ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any
contingency.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
ss. 77aaa-77bbbb) as amended and in effect on the date of this
Indenture or, if this Indenture is qualified under the TIA, from
and after the date of such qualification, the TIA as in effect at
the date of such qualification.
"TRUSTEE" means the party named as such above until a
successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the successor.
"TRUST OFFICER" means, with respect to the Trustee, any
officer assigned to the Corporate Trust Office, including any
managing director, vice president, assistant vice president,
assistant treasurer, assistant secretary or any other officer of
the Trustee customarily performing functions similar to
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<PAGE>
those performed by any of the above designated officers and
having direct responsibility for the administration of this
Indenture.
"U.S. GOVERNMENT OBLIGATIONS" means direct obligations of
the United States of America for the payment of which the full
faith and credit of the United States of America is pledged. U.S.
Government obligations shall not be callable at the issuer's
option.
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture.
SECTION 1.03. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the TIA either
directly or by reference therein, have the meanings assigned to them
therein;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
ARTICLE II
THE SECURITIES
SECTION 2.01. FORM OF SECURITIES AND DATING. The Securities will
initially be issued (a), with respect to Securities sold to qualified
institutional buyers (as defined under Rule 144A under the Securities Act), in
global form, substantially in the form of Exhibit A (the "Global Security")
and/or (b), with respect to Securities sold in
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<PAGE>
reliance on Regulation S under the Securities Act, in definitive form,
substantially in the form of Exhibit B (each, a "Definitive Security"). The
Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Security shall be dated the date of its
authentication.
The terms and provisions contained in the Securities shall constitute,
and are hereby expressly made, a part of this Indenture and to the extent
applicable, the Company and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
The Global Security shall represent such of the outstanding Securities as
shall be specified therein and shall provide that it shall represent the
aggregate amount of outstanding Securities from time to time endorsed thereon
and that the aggregate amount of outstanding Securities represented thereby
may from time to time be reduced to reflect exchanges. Any endorsement of the
Global Security to reflect the amount of any increase or decrease in the
amount of outstanding securities represented thereby shall be made by the
Trustee or the Securities Custodian, at the direction of the Trustee, in such
manner and upon instructions given by the holder thereof.
Payment of principal of and any interest on the Global Security or any
Definitive Security shall be made to the holder thereof as of the record date
for such payment as specified in the form of Global Security or Definitive
Security, as the case may be.
SECTION 2.02. EXECUTION AND AUTHENTICATION. The Securities shall be
executed on behalf of the Company by an officer, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of these Officers on the securities may be manual
or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper Officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at
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<PAGE>
the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a written order of the Company
signed by two Officers for the authentication and delivery of such Securities;
and the Trustee in accordance with such written order shall authenticate and
deliver such Securities as in this Indenture provided and not otherwise.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same right as an Agent to deal with the Company
or an Affiliate.
SECTION 2.03. REGISTRAR, PAYING AGENT, CONVERSION AGENT, DEPOSITORY AND
SECURITIES CUSTODIAN. The Company shall maintain in such locations as it shall
determine (a) an office or agency where securities may be presented for
registration of transfer or for exchange ("Registrar"), (b) an office or
agency where Securities may be presented for payment ("Paying Agent"), and (c)
an office or agency where securities may be presented for conversion
("Conversion Agent"). The Registrar shall keep a register of the Securities
and of their transfer and exchange (the "Securities Register"). The Company
may appoint one or more co-Registrars, one or more additional paying agents
and one or more additional conversion agents. The term "Paying Agent" includes
any additional paying agent; the term "Conversion Agent" includes any
additional conversion agent. The Company may change any Paying Agent,
Registrar, Conversion Agent or co-Registrar without prior notice. The Company
shall notify the Trustee of the name and address of
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any Agent not a party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar, Paying Agent or Conversion Agent, the
Trustee shall act as such. The Company or any of its subsidiaries may act as
Conversion Agent, Paying Agent, Registrar or co-Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depository with respect to the Global Security.
The Company initially appoints the Trustee as Conversion Agent, Paying
Agent, Registrar and authenticating agent.
The Company initially appoints Bankers Trust Company to act as Securities
Custodian with respect to the Global Security.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST. The Company shall
require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will hold in trust for the benefit of Securityholders or the
Trustee all money held by the Paying Agent for the payment of principal or
interest on the Securities, and will notify the Trustee of any default by the
Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a subsidiary) shall have no further liability for the
money. If the Company or a subsidiary acts as Paying Agent, it shall segregate
and hold in a separate trust fund for the benefit of the Securityholders all
money held by it as Paying Agent.
SECTION 2.05. SECURITYHOLDER LISTS. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to
it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee on or before each interest
payment date and at such other times as the Trustee may request in writing a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Securityholders.
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SECTION 2.06. TRANSFER AND EXCHANGE. (a) The transfer and exchange of the
Global Security shall be effected through the Depository, in accordance with
this Indenture (including the restrictions on transfer set forth herein) and
the procedures of the Depository therefor. When Definitive Securities are
presented to the Registrar or a co-Registrar with a request to register the
transfer of such Definitive Securities or to exchange such Definitive
Securities for an equal principal amount of Definitive Securities of other
authorized denominations, the Registrar or co-Registrar shall register the
transfer or make the exchange as requested if its requirements for such
transaction are met; provided, HOWEVER, that the Definitive Securities
surrendered for transfer or exchange (i) shall be duly endorsed or accompanied
by a written instrument of transfer in form satisfactory to the Company and
the Registrar or co-Registrar, duly executed by the Holder thereof or his
attorney, duly authorized in writing and (ii) in the case of Definitive
Securities which are Restricted Securities only, shall be accompanied by the
following additional information and documents, as applicable:
(A) if such Definitive Security is being acquired for the account of such
Holder, without transfer, a certification from such Holder to that effect
(in substantially the form of Exhibit C-I hereto); or
(B) if such Definitive Security is being transferred to a qualified
institutional buyer (as defined in Rule 144A under the Securities Act) in
accordance with Rule 144A under the Securities Act or pursuant to an
exemption from registration in accordance with Rules 144 or 145 or
Regulation S under the Securities Act or pursuant to an effective
registration statement under the Securities Act, a certification to that
effect (in substantially the form of Exhibit C-I hereto); or
(C) if such Definitive Security is being transferred in reliance on
another exemption from the registration requirements of the Securities Act,
a certification to that effect (in substantially the form of Exhibit C-I
hereto) and an opinion of Counsel acceptable to the Company and to the
Registrar or co- Registrar to the effect that such transfer is in
compliance with the Securities Act (in substantially
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the form of Exhibit C-II hereto).
To permit the registration of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Definitive Securities at the
Registrar's or co- Registrar's request. No service charge shall be made for
any registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchanges or transfers pursuant to Sections
2.10, 3.06, 9.05 or 10.02). The Registrar or co-Registrar shall not be
required to register the transfer of or exchange any Definitive Security
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
(b) Except as permitted by the following paragraph, each certificate
evidencing the Global Security and the Definitive Securities (and all
securities issued in exchange therefor or substitution thereof (shares of
Common Stock issued upon conversion of any Restricted Security shall bear a
comparable legend)) shall bear a legend in substantially the following
form:
THIS SECURITY AND ANY COMMON STOCK ISSUABLE UPON ITS CONVERSION HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A)(1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER
THE SECURITIES ACT, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT
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AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES
OF THE UNITED STATES.
Upon any sale or other transfer of a Restricted Security (including the
Global Security) satisfying the conditions set forth in clause (3) or (4)
above, or with respect to any Restricted Security that may be sold pursuant to
Rule 144(k) promulgated under the Securities Act, (i) in the case of any
Definitive Security that is a Restricted Security, the Registrar or
co-Registrar shall permit the Holder thereof to exchange such Restricted
Security for Definitive Securities that do not bear the legend set forth above
and rescind any restriction on the transfer of such Security, (ii) any such
Restricted Security represented by the Global Security shall not be subject to
any restriction on transfer set forth above; PROVIDED, HOWEVER, with respect
to any request for an exchange of a Restricted Security for a Definitive
Security which does not bear a legend, which request is made in reliance upon
Rule 144(k), the Holder thereof shall certify in writing to the Registrar or
co-Registrar that such request is so being made in reliance on Rule 144(k).
(c) Notwithstanding any other provisions (other than the provisions set
forth in Sections 2.06(d) and 2.06(e) of this Section), the Global Security
may not be transferred except as a whole by the Depository to a nominee of
the Depository or by a nominee of the Depository to the Depository or
another nominee of the Depository or by the Depository or any such nominee
to a successor Depository or a nominee of such successor Depository.
(d) If at any time the Depository for the Securities notifies the Company
that it is unwilling or unable to continue as Depository for the
Securities, the Company shall appoint a successor Depository with respect
to the Securities. If a successor Depository for the securities is not
appointed by the Company within 90 days after the Company receives such
notice, the Company will execute, and the Trustee, upon receipt of an
Officers' Certificate for the authentication and delivery of Definitive
Securities, will authenticate and deliver Definitive securities in fully
registered form in an aggregate principal amount equal to the principal
amount of the Global Security in exchange for such Global Security.
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The Company may at any time and in its sole discretion determine that the
Securities issued as a Global Security shall no longer be represented by such
Global Security. In such event the Company will execute, and the Trustee, upon
receipt of an Officers' Certificate for the authentication and delivery of
Definitive Securities, will authenticate and deliver, Definitive Securities in
an aggregate principal amount equal to the principal amount of the Global
Security in exchange for such Global Security.
If a Definitive Security is issued in exchange for any portion of the
Global Security after the close of business at the office or agency where such
exchange occurs on any record date and before the opening of business at such
office or agency on the next succeeding interest payment date, interest will
not be payable on such interest payment date in respect of such Definitive
Security, but will be payable on such interest payment date only to the person
to whom interest in respect of such portion of the Global Security is payable
in accordance with the provisions of this Indenture.
Definitive Securities issued in exchange for the Global Security pursuant
to this Section 2.06 shall be registered in such names and in such authorized
denominations as the Depository, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Definitive Securities to the persons in whose names such
Securities are so registered.
(e) Any person having a beneficial interest in the Global Security may
upon request exchange its interest in the Global Security for a Definitive
Security. Upon receipt by the Trustee of written or electronic instructions
from the Depository or its nominee on behalf of any person having a
beneficial interest in Securities and upon receipt by the Trustee of a
written order of the Depository or its nominee containing registration
instructions and, in the case of Restricted Securities only, the following
additional information and documents:
(i) if such Definitive Security is being acquired for the account of such
person, without transfer, a certification from such person to that effect
(in
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substantially the form of Exhibit C-I hereto); or
(ii) if such Definitive Security is being transferred to a qualified
institutional buyer (as defined in Rule 144A under the Securities Act) in
accordance with Rule 144A under the Securities Act or pursuant to an
exemption from registration in accordance with Rules 144 or 145 or
Regulation S under the Securities Act or pursuant to an effective
registration statement under the Securities Act, a certification to that
effect (in substantially the form of Exhibit C-I hereto); or
(iii) if such Definitive Security is being transferred in reliance on
another exemption from the registration requirements of the Securities
Act, a certification to that effect (in substantially the form of Exhibit
C-I hereto) and an opinion of Counsel acceptable to the Company and to the
Registrar or co- Registrar to the effect that such transfer is in
compliance with the Securities Act (in substantially the form of Exhibit
C-II hereto);
the Trustee or the Securities Custodian, at the direction of the Trustee, will
cause, in accordance with the standing instructions and procedures existing
between the Depository and the Securities Custodian, the aggregate principal
amount of the Global Security to be reduced and, following such reduction, the
Company will execute and, upon receipt of an authentication order in the form
of an Officers' Certificate, the Trustee will authenticate and deliver to such
person or the transferee, as the case may be, a Definitive Security.
(f) A holder of a Definitive Security may, upon satisfaction of the
requirements set forth below, exchange such Definitive Security for an
interest in the Global Security. Upon receipt by the Trustee of a
Definitive Security, duly endorsed or accompanied by appropriate
instruments endorsed or accompanied by appropriate instruments of transfer,
in form satisfactory to the Trustee, together with (i) certification,
substantially in the form of Exhibit C-I hereto, that such Definitive
Security is being transferred to a qualified institutional buyer (as
defined in Rule 144A under the Securities Act) in accordance with Rule 144A
under the Securities Act, and
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(ii) written instructions directing the Trustee to make, or to direct the
Securities Custodian to make, an endorsement on the Global Security to
reflect an increase in the aggregate principal amount of the Securities
represented by the Global Security, the Trustee shall cancel such
Definitive Security and cause, or direct the Securities Custodian to cause,
in accordance with the standing instructions and procedures existing
between the Depository and the Securities Custodian, the aggregate
principal amount of Securities represented by the Global Security to be
increased accordingly.
(g) At such time as all interests in the Global Security have either been
exchanged for Definitive Securities, redeemed, converted, repurchased or
canceled, such Global Security shall be canceled by the Trustee. At any
time prior to such cancelation, if any interest in the Global Security is
exchanged for Definitive Securities, redeemed, converted, repurchased or
canceled, the principal amount of Securities represented by such Global
Security shall be reduced and an endorsement shall be made on such Global
Security, by the Trustee or the Securities Custodian, at the direction of
the Trustee, to reflect such reduction.
(h) The Company shall not be required (i) to issue, register the transfer
of or exchange Securities during a period beginning at the opening of
business 15 days before the day of any selection of Securities for
redemption under Section 3.02 and ending at the close of business on the
day of selection, or (ii) to register the transfer or exchange of any
Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
SECTION 2.07. REPLACEMENT SECURITIES. If any mutilated Security is
surrendered to the Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence
to their satisfaction of the destruction, loss or theft of any Security and
(b) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then,
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in the absence of notice to the Company or the Trustee that such Security has
been acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen securities.
SECTION 2.08. OUTSTANDING SECURITIES. The Securities outstanding at any
time are all the Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancelation and those reductions in
the interests in the Global Security effected by the Trustee hereunder, and
those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
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If Securities are considered paid under Section 4.01, they cease to be
outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Security.
SECTION 2.09. TREASURY SECURITIES. In determining whether the Holders of
the required principal amount of Securities have concurred in any direction,
waiver or consent, Securities owned by the Company or an Affiliate of the
Company shall be considered as though they are not outstanding, except that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities which any
Corporate Trust Officer knows are so owned shall be so disregarded.
SECTION 2.10. TEMPORARY SECURITIES. Until the Global Security or
Definitive Securities are ready for delivery, the Company may prepare and the
Trustee shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of the Global Security or Definitive Securities, as
the case may be, but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate the Global Security or
Definitive Securities, as the case may be, in exchange for temporary
Securities.
SECTION 2.11. CANCELATION. The Company at any time may deliver Securities
to the Trustee for cancelation. The Registrar, Paying Agent and Conversion
Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange, payment or conversion. The Trustee shall
cancel all Securities surrendered for registration of transfer, exchange,
payment, replacement, conversion or cancellation and shall dispose of
cancelled Securities. The Company may not issue new Securities to replace
Securities that it has paid or that have been delivered to the Trustee for
cancelation or that any Securityholder has converted pursuant to Article X.
SECTION 2.12. DEFAULTED INTEREST. If the Company
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fails to make a payment of interest on the Securities, it shall pay such
defaulted interest plus any interest payable on the defaulted interest in any
lawful manner. It may pay such defaulted interest, plus any such interest
payable on it, to the persons who are Securityholders on a subsequent special
record date. The Company shall fix any such record date and payment date. At
least 15 days before any such record date, the Company shall mail to
Securityholders a notice that states the record date, payment date, and amount
of such interest to be paid.
ARTICLE III
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE. If the Company elects to redeem
Securities pursuant to the optional redemption provisions of paragraph 6 of
the Securities, it shall notify the Trustee of the Redemption Date and the
principal amount of Securities to be redeemed.
The Company shall give each notice provided for in this Section to the
Trustee at least 40 days but not more than 60 days before the Redemption Date
(unless a shorter notice period shall be satisfactory to the Trustee).
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED. If less than all
the Securities are to be redeemed, the Trustee shall select the Securities to
be redeemed by lot or by a method that complies with the requirements of any
exchange on which the Securities are listed and that the Trustee considers
fair and appropriate. The Trustee may select for redemption portions of the
principal of Securities that have denominations larger than $1,000. Securities
and portions of them it selects shall be in amounts of $1,000 or integral
multiples of $1,000. The Trustee shall notify the Company promptly of the
Securities or portions of Securities to be called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION. At least 30 days but not more than 60
days before a Redemption Date, the Company shall mail a notice of redemption
to each Holder whose Securities are to be redeemed at the address of such
Holder shown in the Security Register.
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The notice shall identify the Securities to be redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
Redemption Date, upon surrender of such Security, a new Security or
securities in principal amount equal to the unredeemed portion will be
issued;
(d) the conversion price;
(e) the name and address of the Paying Agent and Conversion Agent;
(f) that Securities called for redemption may be converted at any time
before the close of business on the business day before the Redemption
Date;
(g) that Holders who want to convert Securities must satisfy the
requirements in paragraph 9 of the Securities;
(h) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(i) that interest on Securities called for redemption ceases to accrue on
and after the Redemption Date; and
(j) that Holders who convert after the date of the redemption notice but
before the Redemption Date will be entitled to receive accrued interest on
their converted Securities through the Redemption Date.
At the Company's request, the Trustee shall give notice of redemption in
the Company's name and at its expense.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. Once a notice of redemption
is mailed, Securities called for
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redemption become due and payable on the Redemption Date at the price set
forth in the Security.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. On or before the Redemption
Date, the Company shall deposit with the Trustee or with the Paying Agent
money sufficient to pay the Redemption Price of and accrued interest on all
Securities to be redeemed on that date. The Trustee or the Paying Agent shall
return to the Company any money not required for that purpose.
SECTION 3.06. SECURITIES REDEEMED IN PART. Upon surrender of a Definitive
Security that is redeemed in part, the Company shall issue and the Trustee
shall authenticate for the Holder at the expense of the Company a new
Definitive Security equal in principal amount to the unredeemed portion of the
Definitive Security surrendered.
ARTICLE IV
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES. The Company shall pay the principal
of and interest on the Securities on the dates and in the manner provided in
the Securities. Principal and interest shall be considered paid on the date
due if the Paying Agent (other than the Company or a subsidiary) holds on that
date money designated for and sufficient to pay all principal and interest
then due; PROVIDED, HOWEVER, that money held by the Paying Agent for the
benefit of holders of Senior Debt pursuant to the provisions of Article XI
hereof shall not be considered paid within the meaning of this Section 4.01.
To the extent lawful, the Company shall pay interest semiannually
(including post-petition interest in any proceeding under any bankruptcy,
insolvency or other similar law) on (a) overdue principal, at the rate borne
by the Securities and (b) overdue installments of interest (including interest
contemplated by clause (a) and without regard to any applicable grace period)
at the same rate.
SECTION 4.02. SEC REPORTS. The Company shall deliver to the Trustee
within 15 days after it files them with the SEC copies of the annual reports
and of the
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information, documents, and other reports (or copies of such portions of any
of the foregoing as the SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act. The Company also shall comply with the other provisions of
TIA ss. 314(a). The Company shall timely comply with its reporting and filing
obligations under applicable federal securities laws.
SECTION 4.03. COMPLIANCE CERTIFICATE. The Company shall deliver to the
Trustee, within 120 days after the end of each fiscal year of the Company, an
Officers' Certificate stating that a review of the activities of the Company
and its subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such officer signing such
certificate, that to the best of his knowledge the Company has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture
and is not in default in the performance or observance of any of the terms,
provisions and conditions hereof (or, if a Default or Events of Default shall
have occurred, describing all such Defaults or Events of Default of which he
may have knowledge) and that to the best of his knowledge no event has
occurred and remains in existence by reason of which payments on account of
the principal of or interest, if any, on the Securities are prohibited.
The first certificate pursuant to this Section shall be for the fiscal
year ending on December 31, 1997.
The Company will, so long as any of the Securities are outstanding,
deliver to the Trustee, forthwith upon becoming aware of any Default or Event
of Default, an Officers' Certificate specifying such Default or Event of
Default.
SECTION 4.04. STAY, EXTENSION AND USURY LAWS. The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law wherever enacted, now or at any
time hereafter in force, which may affect the
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covenants or the performance of this Indenture; and the Company (to the extent
it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
has been enacted.
SECTION 4.05. LIQUIDATION. The Company shall not adopt any plan of
liquidation which provides for, contemplates, or the effectuation of which is
preceded by, (a) the sale, lease, conveyance or other disposition of all or
substantially all the assets of the Company otherwise than substantially as an
entirety in accordance with Article V and (b) the distribution of all or
substantially all the proceeds of such sale, lease, conveyance or other
disposition and of the remaining assets of the Company to holders of Common
Stock of the Company, unless the Company shall in connection with the adoption
of such plan make provision for, or agree that prior to making any liquidating
distributions it will make provision for, the satisfaction of the Company's
obligations hereunder and under the Securities as to the payment of principal
and interest.
SECTION 4.06. RESERVATION OF SHARES OF COMMON STOCK FOR ISSUANCE UPON
CONVERSION. The Company will at all times cause there to be authorized and
reserved for issuance upon conversion of the Securities such number of shares
of Common Stock as would be issuable upon conversion of all the Securities
then outstanding.
SECTION 4.07. RULE 144A INFORMATION REQUIREMENT. For so long as any of
the Securities remain outstanding and are "restricted securities" within the
meaning of Rule 144(a)(3) under the Securities Act, the Company covenants and
agrees that it shall, during any period in which it is not subject to Section
13 or 15(d) under the Exchange Act, make available to any Holder or beneficial
holder of Securities which continue to be restricted securities in connection
with any sale thereof and any prospective purchaser of Securities from such
Holder or beneficial holder, the information specified in, and meeting the
requirements of, Rule 144A(d)(4) under the Securities Act.
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ARTICLE V
SUCCESSORS
SECTION 5.01. WHEN COMPANY MAY MERGE, ETC. The Company shall not
consolidate with or merge into any other corporation or convey, transfer or
lease its properties and assets substantially as an entirety to any person,
unless:
(a) the corporation formed by such consolidation or into which the
Company is merged or the person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety shall be a corporation organized and existing under the laws of
the United States of America, any State thereof or the District of Columbia
and shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of and interest on all the Securities
and the performance of every covenant of this Indenture on the part of the
Company to be performed or observed and shall have provided for conversion
rights in accordance with Section 10.17;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; and
(c) the Company has delivered to the Trustee an Officers' Certificate and
an opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED. Upon any consolidation
or merger, or any sale, lease, conveyance or other disposition of all or
substantially all of the assets of the Company in accordance with Section
5.01, the successor corporation formed by such
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consolidation or into or with which the Company is merged or to which such
sale, lease, conveyance or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor person has been named
as the Company herein; PROVIDED, HOWEVER, that the predecessor Company in the
case of a sale, lease, conveyance or other disposition shall not be released
from the obligation to pay the principal of and interest on the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. An "Event of Default" occurs if:
(a) the Company defaults in the payment of interest on any Security when
the same becomes due and payable and the Default continues for a period of
30 days;
(b) the Company defaults in the payment of the principal of any Security
when the same becomes due and payable at maturity, upon redemption or
otherwise;
(c) the Company defaults in the payment of the repurchase price in
respect of any Security on the Repurchase Date therefor in accordance with
the provisions of Article XII, whether or not such payment is prohibited by
the provisions of Article XI;
(d) the Company defaults in the performance of, or breaches, any covenant
or warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and such default or breach continues
for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the then
outstanding Securities a written notice specifying such default or breach
and requiring it to be remedied and stating that such
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notice is a "Notice of Default" hereunder;
(e) the Company defaults under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company or under any
mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any indebtedness for money borrowed
by the Company, whether such indebtedness now exists or shall hereafter be
created, which default shall have resulted in $1,000,000 or more of such
indebtedness becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable, without such
indebtedness having been discharged, or acceleration having been rescinded
or annulled, within a period of 10 days after there shall have been given,
by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount
of the then outstanding Securities a written notice specifying such default
and requiring the Company to cause such indebtedness to be discharged or
cause such acceleration to be rescinded or annulled and stating that such
notice is a "Notice of Default" hereunder; or
(f) the Company or any Significant Subsidiary shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect, or seeking the appointment
of a trustee, receiver, conservator, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall consent to
any such relief or to the appointment of or taking of possession by any
such official in an involuntary case or other proceeding commenced against
it or shall file an answer admitting the material allegations against it in
any such proceeding, or shall make a general assignment for the benefit of
creditors, or shall take any corporate action to authorize any of the
foregoing, or becomes unable or fails generally to pay its debts as they
become due; or an involuntary case or other proceeding shall be commenced
against the Company or any Significant Subsidiary seeking liquidation,
reorganization or other relief with respect to it or
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its debts under any bankruptcy, insolvency or other similar law now or
thereafter in effect or seeking the appointment of a trustee, receiver,
conservator, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 90
consecutive days.
In the case of any Event of Default pursuant to the provisions of this
Section 6.01 occurring by reason of any wilful action (or inaction) taken
(or not taken) by or on behalf of the Company with the intention of
avoiding payment of the premium which the Company would have had to pay if
the Company then had elected to redeem the Securities pursuant to paragraph
6 of the Securities, an equivalent premium shall also become and be
immediately due and payable to the extent permitted by law, anything in
this Indenture or in the Securities contained to the contrary
notwithstanding.
SECTION 6.02. ACCELERATION. If an Event of Default (other than an Event
of Default specified in clause (f) of Section 6.01) occurs and is continuing,
the Trustee by notice to the Company, or the Holders of at least 25% in
principal amount of the then outstanding Securities by notice to the Company
and the Trustee, may declare the unpaid principal of and accrued interest on
all the Securities to be due and payable. Upon such declaration the principal
and interest shall be due and payable immediately. If an Event of Default
specified in clause (f) of Section 6.01 occurs, such an amount shall ipso
facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder. The Holders of a majority
in principal amount of the then outstanding Securities by notice to the
Trustee may rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default have been cured or waived except nonpayment of principal or interest
that has become due solely because of the acceleration.
SECTION 6.03. OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal or interest on the Securities or to enforce the performance of
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any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS. Subject to Section 9.02, the
Holders of a majority in principal amount of the then outstanding Securities
by notice to the Trustee may waive an existing Default or Event of Default and
its consequences except a continuing Default or Event of Default in the
payment of the principal (other than principal due by reason of acceleration)
of or interest on any Security or a Default which materially and adversely
affects the rights of any Holders under Article X.
SECTION 6.05. CONTROL BY MAJORITY. The Holders of a majority in principal
amount of the then outstanding Securities may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture, is unduly
prejudicial to the rights of other Securityholders, or would involve the
Trustee in personal liability.
SECTION 6.06. LIMITATION ON SUITS. A Securityholder may pursue a remedy
with respect to this Indenture or the Securities only if:
(a) the Holder gives to the Trustee notice of a continuing Event of
Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Securities make a request to the Trustee to pursue the remedy;
(c) such Holder or Holders offer to the Trustee indemnity satisfactory to
the Trustee against any loss, liability or expense;
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(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Securities do not give the Trustee a
direction inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of another
Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Security to
receive payment of principal and interest on the Security, on or after the
respective due dates expressed in the Security, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of the Holder.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security (a) to bring suit for the enforcement of the right to
convert the Security and (b) to require the Company to repurchase the Security
pursuant to Article XII, shall not be impaired or affected without the consent
of the Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of Default
specified in Section 6.01(a), (b) or (c) occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal and interest remaining
unpaid on the Securities and interest on overdue principal and interest and
such further amount as shall be sufficient to cover the costs and, to the
extent lawful, expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee and the Securityholders allowed in
any judicial proceedings relative
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to the Company, its creditors or its property. Nothing contained herein shall
be deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Securityholder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding.
SECTION 6.10. PRIORITIES. If the Trustee collects any money pursuant to
this Article, it shall pay out the money in the following order:
FIRST, to the Trustee for amounts due under
Section 7.07;
SECOND, to holders of Senior Debt to the extent required
by Article XI;
THIRD, to Securityholders for amounts due and unpaid on
the Securities for principal, and interest,
ratably, without preference or priority of any
kind, according to the amounts due and payable on
the Securities for principal, and interest,
respectively; and
FOURTH, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders other than as provided for in Section 2.12.
SECTION 6.11. UNDERTAKING FOR COSTS. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by Holders of
more than 10% in principal amount of the
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then outstanding Securities.
ARTICLE VII
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE. (a) If an Event of Default has occurred
and is continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture; PROVIDED HOWEVER, that the Trustee is not required to confirm
the correctness of any mathematical computations.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own wilful misconduct,
except that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect
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to any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held
in trust by the Trustee need not be segregated from other funds except to
the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE. (a) The Trustee may rely on any document
believed by it to be genuine and to have been signed or presented by the
proper person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, or both. The Trustee shall
not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents, attorneys, custodians or nominees
and shall not be responsible for the misconduct or negligence of any agent,
attorney, custodian or nominee appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights
or powers.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its individual
or any other capacity may become the owner or pledgee of Securities and may
otherwise deal with the Company or an Affiliate with the same rights it would
have if it were not Trustee. Any Agent may do the same with like rights.
However, the Trustee is subject to
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Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER. The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities, it shall
not be accountable for the Company's use of the proceeds from the Securities,
and it shall not be responsible for any statement of the Company in the
Indenture or any statement in the Securities other than its authentication.
SECTION 7.05. NOTICE OF DEFAULTS. If a Default or Event of Default occurs
and is continuing and if it is known to the Trustee, the Trustee shall mail to
Securityholders, at the name and address which appears in the Securities
Register a notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default or Event of Default in payment on any
Security (including any failure to make any mandatory redemption payment
required hereunder), the Trustee may withhold the notice if and so long as a
committee of its Trust Officers in good faith determines that withholding the
notice is in the interests of Securityholders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. This Section 7.06 shall not
be operative as part of this Indenture until this Indenture is qualified under
the TIA, and, until such qualification, this Indenture shall be construed as
if this Section 7.06 were not contained herein.
Within 60 days after the reporting date (which shall be October 31 of
each year), the Trustee shall mail to each Securityholder, at the name and
address which appears in the Securities Register a brief report dated as of
such reporting date that complies with TIA ss. 313(a). The Trustee also shall
comply with TIA ss. 313(b)(2). The Trustee shall also transmit by mail all
reports as required by TIA ss. 313(c).
A copy of each report at the time of its mailing to Securityholders shall
be filed with the SEC and each stock exchange on which the Securities are
listed. The Company shall notify the Trustee when the Securities are listed on
any stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY. The Company shall pay to the
Trustee from time to time
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reasonable compensation for its services hereunder. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred by it. Such expenses may include the
reasonable compensation and out-of-pocket expenses of the Trustee's agents and
counsel.
The Company shall indemnify the Trustee and its officers, directors,
agents and employees against any loss or liability incurred by it except as
set forth in the next paragraph. The Trustee shall notify the Company promptly
of any claim for which it may seek indemnity. The Company shall defend the
claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.
The Company need not reimburse any expense or indemnify against any loss
or liability incurred by the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(f) occurs, the expenses and the compensation
for the services are intended to constitute expenses of administration under
any bankruptcy, insolvency or other similar law.
SECTION 7.08. REPLACEMENT OF TRUSTEE. A resignation or removal of the
Trustee and appointment of a successor Trustee shall become effective only
upon the successor Trustee's acceptance of appointment as provided in this
Section.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the then outstanding securities may remove the
Trustee by so notifying the Trustee and the Company in writing. The
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Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any bankruptcy,
insolvency or other similar law;
(c) a receiver, trustee, liquidator or similar official takes charge of
the Trustee or its property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Securities may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the then outstanding
Securities may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder or
Beneficial Holder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Securityholders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the lien provided
for in Section 7.07. Notwithstanding the
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replacement of the Trustee pursuant to this Section 7.08, the Company's
obligations under Section 7.07 hereof shall continue for the benefit of the
retiring Trustee with respect to expenses and liabilities incurred by it prior
to such replacement.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC. If the Trustee
consolidates, merges or converts into, or transfers all or substantially all
of its corporate trust business to, another corporation, the successor
corporation without any further act shall be the successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. This Indenture shall always
have a Trustee who satisfies the requirements of TIA ss. 310(a)(1). The
Trustee shall always have a combined capital and surplus of $50,000,000 as set
forth in its most recent published annual report of condition. The Trustee
will at all times comply with, and when this Indenture is qualified under the
TIA will be subject to, TIA ss. 310(b), including the optional provision
permitted by the second sentence of TIA ss. 310(b)(9).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee is subject to TIA ss. 311(a), excluding anY creditor relationship
listed in TIA ss. 311(b). A Trustee who haS resigned or been removed shall be
subject to TIA ss. 311(a) to thE extent indicated therein. In the event that
the Trustee is also serving as the Paying Agent or Registrar, the rights,
protections, immunities and indemnities granted to the Trustee hereunder shall
be afforded to the Paying Agent and Registrar.
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF COMPANY'S OBLIGATIONS. This Indenture shall
cease to be of further effect (except that the Company's obligations under
Section 7.07 and 8.03 shall survive) when all outstanding Securities
theretofore authenticated and issued have been delivered to the Trustee for
cancelation and the Company has paid all sums payable hereunder. In addition,
the Company may terminate all of its obligations under this Indenture (except
the Company's obligations under Sections 7.07 and
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8.03) if:
(a) the Securities mature within one year or all of them are to be called
for redemption within one year under arrangements satisfactory to the
Trustee for giving the notice of redemption; and
(b) the Company irrevocably deposits in trust with the Trustee money or
U.S. Government Obligations sufficient to pay principal and interest on the
Securities to maturity or redemption, as the case may be, and to pay all
other sums payable by it hereunder. The Company may make the deposit only
during the one- year period and only if Article XI permits it.
However, the Company's obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07,
4.01, 7.07, 8.03, 8.04 and in Article X, shall survive until the Securities
are no longer outstanding. Thereafter, only the Company's obligations in
Sections 7.07 and 8.03 shall survive.
In order to have money available on a payment date to pay principal or
interest on the Securities, the U.S. Government Obligations shall be payable
as to principal or interest on or before such payment date in such amounts as
will provide the necessary money.
After a deposit made pursuant to this Section 8.01, the Trustee upon
request shall acknowledge in writing the discharge of the Company's
obligations under this Indenture except for those surviving obligations
specified above.
SECTION 8.02. APPLICATION OF TRUST MONEY. The Trustee shall hold in trust
money or U.S. Government obligations deposited with it pursuant to Section
8.01. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal and interest on the Securities. Money and securities
so held in trust are not subject to Article XI.
SECTION 8.03. REPAYMENT TO COMPANY. The Trustee and the Paying Agent
shall promptly pay to the Company upon request any excess money or securities
held by them at any time.
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The Trustee and the Paying Agent shall pay to the Company upon request
any money held by them for the payment of principal or interest that remains
unclaimed for two years after the date upon which such payment shall have
become due; PROVIDED, HOWEVER, that the Company shall have first caused notice
of such payment to the Company to be mailed to each Securityholder entitled
thereto no less than 30 days prior to such payment. After payment to the
Company, Securityholders entitled to the money must look to the Company for
payment as general creditors unless an applicable abandoned property law
designates another person.
SECTION 8.04. REINSTATEMENT. If (a) the Trustee or Paying Agent is unable
to apply any money in accordance with Section 8.02 by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application and (b) the Holders of at least a
majority in principal amount of the then outstanding Securities so request by
written notice to the Trustee, the Company's obligations under this Indenture
and the Securities shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.01 until such time as the Trustee or Paying
Agent is permitted to apply all such money in accordance with Section 8.02;
PROVIDED, HOWEVER, that if the Company makes any payment of principal or
interest of any Security following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. The Company and the Trustee may
amend this Indenture or the securities without the consent of any
Securityholder:
(a) to cure any ambiguity, defect or inconsistency; or
(b) to comply with Sections 5.01 and 10.17; or
(c) to provide for uncertificated Securities in addition to certificated
Securities; or
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(d) to make any change that does not materially adversely affect the
legal rights hereunder of any Securityholder; or
(e) to comply with the TIA; PROVIDED, that, in the case of clauses (a)
through (d) above, inclusive, the Company has delivered to the Trustee an
Opinion of Counsel stating that such change does not adversely affect the
rights of any Securityholder.
SECTION 9.02. WITH CONSENT OF HOLDERS. Subject to Section 6.07, the
Company and the Trustee may amend this Indenture or the Securities with the
written consent of the Holders of at least a majority in principal amount of
the then outstanding Securities. Subject to Sections 6.04 and 6.07, the
Holders of a majority in principal amount of the then outstanding Securities
may also waive compliance in a particular instance by the Company with any
provision of this Indenture or the Securities. However, without the consent of
each Securityholder affected, an amendment or waiver under this Section may
not:
(a) reduce the amount of Securities whose Holders must consent to an
amendment or waiver;
(b) reduce the rate of or change the time for payment of interest on any
Security;
(c) reduce the principal of or change the fixed maturity of any Security
or alter the redemption provisions with respect thereto;
(d) make any Security payable in money other than that stated in the
Security;
(e) make any change in Section 6.04, 6.07 or 9.02 which adversely affects
the rights of the Securityholders;
(f) make any change that adversely affects the right to convert any
Security;
(g) make any change in Article XI that adversely affects the rights of
any Securityholder; or
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(h) waive a default in the payment of the principal (except principal due
by reason of acceleration) of, or interest on, any Security or any Default
which materially and adversely affects the rights of any Securityholders
under Article X.
After an amendment or waiver under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing the
amendment or waiver.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. Every amendment to
this Indenture or the Securities shall be set forth in a supplemental
indenture that complies with the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS. Until an amendment or
waiver becomes effective, a consent to it by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's
Security, even if notation of the consent is not made on any Security.
However, any such Holder or subsequent Holder may revoke the consent as to his
Security or portion of a Security if the Trustee receives the notice of
revocation before the date on which the Trustee receives an Officer's
Certificate certifying that the Holders of the requisite principal amount of
securities have consented to the amendment or waiver.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment or
waiver. If a record date is fixed, then notwithstanding the provisions of the
immediately preceding paragraph, those persons who were Holders at such record
date (or their duly designated proxies), and only those persons, shall be
entitled to consent to such amendment or waiver or to revoke any consent
previously given, whether or not such persons continue to be Holders after
such record date. No consent shall be valid or effective for more than 90 days
after such record date unless consents from Holders of the principal amount of
securities required hereunder for such amendment or waiver to be effective
shall have also been given and not revoked within such 90-day period.
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After an amendment or waiver becomes effective it shall bind every
Securityholder, unless it is of the type described in any of clauses (a)
through (h) of Section 9.02. In such case, the amendment or waiver shall bind
each Holder of a Security who has consented to it and every subsequent Holder
of a Security that evidences the same debt as the consenting Holder's
Security.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES. The Trustee may
place an appropriate notation about an amendment or waiver on any Security
thereafter authenticated. The Company in exchange for all Securities may issue
and the Trustee shall authenticate new Securities that reflect the amendment
or waiver.
SECTION 9.06. TRUSTEE PROTECTED. The Trustee shall sign all supplemental
indentures, except that the Trustee need not sign any supplemental indenture
that adversely affects its rights.
ARTICLE X
CONVERSION
SECTION 10.01. CONVERSION PRIVILEGE. A Holder of a Security may convert
it into Common Stock at any time during the period stated in paragraph 9 of
the Securities. The number of shares issuable upon conversion of a Security is
determined as follows: divide the principal amount to be converted by the
conversion price in effect on the Conversion Date. Round the result to the
nearest 1/100th of a share.
The initial conversion price is stated in paragraph 9 of the Securities.
The conversion price is subject to adjustment.
A Holder may convert a portion of a Security if the portion is $1,000 or
an integral multiple of $1,000. Provisions of this Indenture that apply to
conversion of all of a Security also apply to conversion of a portion of it.
SECTION 10.02. CONVERSION PROCEDURE. To convert a Security, a Holder must
satisfy the requirements in paragraph 9 of the Securities. As soon as
practical, the
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Company shall deliver through the Conversion Agent a certificate for the
number of full shares of Common Stock issuable upon the conversion together
with payment in lieu of any fractional share. The person in whose name the
certificate is registered shall be treated as a stockholder of record on and
after the Conversion Date.
No payment or adjustment will be made on conversion of any Security for
interest accrued thereon or dividends on any Common Stock issued and the
Holder will lose any right to payment of interest on the Securities
surrendered for conversion; PROVIDED, HOWEVER, that upon a call for redemption
by the Company, accrued and unpaid interest to the Redemption Date shall be
payable with respect to Securities that are converted after a redemption
notice has been mailed pursuant to Section 3.03 and on or prior to the
Redemption Date. Securities surrendered for conversion during the period from
the regular record date for an interest payment to the corresponding interest
payment date (except Securities called for redemption as described in the
preceding sentence) must be accompanied by payment of an amount equal to the
interest thereon which the Holder is to receive on such interest payment date.
If a Holder converts more than one Security at the same time, the number
of full shares issuable upon the conversion shall be based on the total
principal amount of the Securities surrendered.
Upon a surrender of a Definitive Security that is converted in part, the
Company shall issue and the Trustee shall authenticate for the Holder a new
Definitive Security equal in principal amount to the unconverted portion of
the Security surrendered.
If the last day on which a Security may be converted is a Legal Holiday
in a place where a Conversion Agent is located, the Security may be
surrendered to that Conversion Agent on the next succeeding day that is not a
Legal Holiday.
Upon conversion of an interest in the Global Security, the Trustee or the
Securities Custodian, at the direction of the Trustee, shall make a notation
on such Global Security as to the reduction in the principal amount
represented thereby.
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SECTION 10.03. FRACTIONAL SHARES. The Company will not issue a fractional
share of Common Stock upon conversion of a Security. Instead the Company will
deliver payment in lieu thereof for the current market value of the fractional
share. The current market value of a fraction of a share is determined as
follows: multiply the Current Market Price of a full share by the fraction.
Round the result to the nearest cent.
SECTION 10.04. TAXES ON CONVERSION. The Company will pay any and all
taxes that may be payable in respect of the issue or delivery of shares of
Common Stock on conversion of Securities pursuant hereto. The Company shall
not, however, be required to pay any tax which may be payable in respect of
any transfer involved in the issue and delivery of shares of Common Stock in a
name other than that of the Holder of the Security or Securities to be
converted, and no such issue or delivery shall be made unless and until the
person requesting such issue has paid to the Company the amount of any such
tax, or has established to the satisfaction of the Company that such tax has
been paid.
SECTION 10.05. COMPANY TO PROVIDE STOCK. The Company has reserved and
shall continue to reserve out of its authorized but unissued Common Stock or
its Common Stock held in treasury enough shares of Common Stock to permit the
conversion of the Securities in full.
All shares of Common Stock which may be issued upon conversion of the
Securities shall be fully paid and non assessable.
The Company will comply with all securities laws regulating the offer and
delivery of shares of Common Stock upon conversion of Securities and will use
its best efforts to list such shares on each national securities exchange on
which the Common Stock is listed.
SECTION 10.06. ADJUSTMENT FOR DIVIDENDS AND DISTRIBUTIONS OF COMMON
STOCK. In case the Company shall pay or make a dividend or other distribution
on any class of Capital Stock of the Company in Common Stock, the conversion
price in effect at the opening of business on the day following the date fixed
for the determination of stockholders entitled to receive such dividend or
other
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distribution shall be reduced by multiplying such conversion price by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
and the denominator shall be the sum of such number of shares of Common Stock
and the total number of shares of Common Stock constituting such dividend or
other distribution, such reduction to become effective immediately after the
opening of business on the day following the date fixed for such
determination. For the purposes of this Section 10.06, the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The
Company will not pay any dividend or make any distribution on shares of Common
Stock held in the treasury of the Company.
SECTION 10.07. ADJUSTMENT FOR RIGHTS ISSUE. In case the Company shall
issue rights or warrants to all holders of its Common Stock entitling them to
subscribe for or purchase shares of Common Stock at a price per share less
than the Current Market Price per share of the Common Stock on the date fixed
for the determination of stockholders entitled to receive such rights or
warrants, the conversion price in effect at the opening of business on the day
following the date fixed for such determination shall be reduced by
multiplying such conversion price by a fraction of which the numerator shall
be the number of shares of Common Stock outstanding at the close of business
on the date fixed for such determination plus the number of shares of Common
Stock which the aggregate of the offering price of the total number of shares
of Common Stock so offered for subscription or purchase would purchase at such
Current Market Price and the denominator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase, such reduction to become effective immediately after
the opening of business on the day following the date fixed for such
determination. For the purposes of this Section 10.07, the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The
Company will not issue any
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rights or warrants in respect of shares of Common Stock held in the treasury
of the Company.
SECTION 10.08. ADJUSTMENT FOR OTHER DISTRIBUTIONS. In case the Company
shall, by dividend or otherwise, distribute to all holders of its Common Stock
evidences of its indebtedness or assets (including securities, but excluding
any rights or warrants referred to in Section 10.07, any dividend or
distribution paid in cash out of the earned surplus of the Company and any
dividend or distribution referred to in Section 10.06), the conversion price
shall be adjusted so that the same shall equal the price determined by
multiplying the conversion price in effect immediately prior to the close of
business on the date fixed for the determination of stockholders entitled to
receive such distribution by a fraction of which the numerator shall be the
Current Market Price per share of the Common Stock on the date fixed for such
determination less the then fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and contained in a Board
Resolution filed with the Trustee) of the portion of the assets or evidences
of indebtedness so distributed applicable to one share of Common Stock and the
denominator shall be such Current Market Price per share of the Common Stock,
such adjustment to become effective immediately prior to the opening of
business on the day following the date fixed for the determination of
stockholders entitled to receive such distribution.
SECTION 10.09. ADJUSTMENT FOR SUBDIVISION OF COMMON Stock. In case
outstanding shares of Common Stock shall be subdivided into a greater number
of shares of Common Stock, the conversion price in effect at the opening of
business on the day following the day upon which such subdivision becomes
effective shall be proportionately reduced, and, conversely, in case
outstanding shares of Common Stock shall each be combined into a smaller
number of shares of Common Stock, the conversion price in effect at the
opening of business on the day following the day upon which such combination
becomes effective shall be proportionately increased, such reduction or
increase, as the case may be, to become effective immediately after the
opening of business on the day following the day upon which such subdivision
or combination becomes effective.
SECTION 10.10. ADJUSTMENT FOR RECLASSIFICATION OF
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COMMON STOCK. The reclassification of Common Stock into securities including
other than Common Stock shall be deemed to involve (a) a distribution of such
securities other than Common Stock to all holders of Common Stock (and the
effective date of such reclassification shall be deemed to be "the date fixed
for the determination of stockholders entitled to receive such distribution"
and "the date fixed for such determination" within the meaning of Section
10.08) and (b) a subdivision or combination, as the case may be, of the number
of shares of Common Stock outstanding immediately prior to such
reclassification into the number of shares of Common Stock outstanding
immediately thereafter (and the effective date of such reclassification shall
be deemed to be "the day upon which such subdivision becomes effective" or
"the day upon which such combination becomes effective", as the case may be,
and "the day upon which such subdivision or combination becomes effective"
within the meaning of Section 10.09.
SECTION 10.11. [Intentionally Omitted]
SECTION 10.12. WHEN ADJUSTMENT MAY BE DEFERRED. No adjustment in the
conversion price need be made for a transaction referred to in Sections 10.06,
10.07, 10.08, 10.09 or 10.10 unless the adjustment would require an increase
or decrease of at least 1% in the conversion price. Any adjustments that are
not made shall be carried forward and taken into account in any subsequent
adjustment.
All calculations under this Article shall be made to the nearest cent or
to the nearest 1/100th of a share, as the case may be.
SECTION 10.13. WHEN NO ADJUSTMENT REQUIRED. No adjustment need be made
for a transaction referred to in Sections 10.06, 10.07, 10.08, 10.09 or 10.10
if all Securityholders are entitled to participate in the transaction on a
basis and with notice that the Board of Directors determines to be fair and
appropriate in light of the basis and notice on which holders of Common Stock
participate in the transaction.
No adjustment need be made for rights to purchase Common Stock or
issuance of Common Stock pursuant to a Company plan for reinvestment of
dividends or interest.
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No adjustment need be made for a change in the par value or no par value
of the Common Stock.
To the extent the Securities become convertible into cash, no adjustment
need be made thereafter as to the cash. Interest will not accrue on the cash.
SECTION 10.14. NOTICE OF ADJUSTMENT. Whenever the conversion price is
adjusted, the Company shall promptly mail to Securityholders and the Trustee a
notice of the adjustment. The Company shall file with the Trustee a
certificate from the Company's independent public accountants briefly stating
the facts requiring the adjustment and the manner of computing it. The
certificate shall be conclusive evidence that the adjustment is correct.
SECTION 10.15. VOLUNTARY REDUCTION. The Company from time to time may
reduce the conversion price by any amount for any period of time if the period
is at least 20 days or such longer period as may be required by law and if the
reduction is irrevocable during the period, provided, that in no event may the
conversion price be less than the par value of a share of Common Stock.
Whenever the conversion price is reduced, the Company shall mail to
Securityholders and the Trustee a notice of the reduction and comply with Rule
13e-4 promulgated by the SEC under the Exchange Act, if such rule is
applicable and any other applicable rules and regulations of the SEC. The
notice shall state the reduced conversion price and the period it will be in
effect.
A reduction of the conversion price does not change or adjust the
conversion price otherwise in effect for purposes of Sections 10.06, 10.07,
10.08, 10.09 and 10.10.
SECTION 10.16. NOTICE OF CERTAIN TRANSACTIONS.
If:
(a) the Company takes any action that would require an adjustment in the
conversion price pursuant to Sections 10.06, 10.07, 10.08, 10.09 or 10.10
and if the Company does not let Securityholders participate pursuant to
Section 10.13;
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(b) the Company takes any action that would require a supplemental
indenture pursuant to Section 10.17; or
(c) there is a liquidation or dissolution of the Company,
the Company shall mail to Securityholders and the Trustee a notice stating the
proposed record date for a dividend or distribution or the proposed effective
date of a subdivision, combination, reclassification, consolidation, merger,
transfer, lease, liquidation or dissolution. The Company shall mail such
notice at least 15 days before such date. Failure to mail such notice or any
defect in it shall not affect the validity of the transaction.
SECTION 10.17. REORGANIZATION OF COMPANY. If the Company is a party to a
transaction subject to Section 5.01, or a merger which reclassifies or changes
its outstanding Common Stock, upon consummation of such transaction the
Securities shall automatically become convertible into the kind and amount of
securities, cash or other assets which the Holder of a Security would have
owned immediately after the consolidation, merger, transfer or lease if the
Holder had converted the Security at the conversion price in effect
immediately before the effective date of the transaction. Concurrently with
the consummation of such transaction, the person obligated to issue securities
or deliver cash or other assets upon conversion of the Securities shall enter
into a supplemental indenture so providing and further providing for
adjustments which shall be as nearly equivalent as may be practical to the
adjustments provided for in this Article. The successor Company shall mail to
Securityholders a notice describing the supplemental indenture.
If securities deliverable upon conversion of the securities, as provided
above, are themselves convertible into the securities of an Affiliate of the
formed, surviving, transferee or lessee corporation, that issuer shall join in
the supplemental indenture which shall so provide.
If this Section applies, Section 10.06 does not apply.
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SECTION 10.18. COMPANY DETERMINATION FINAL. Any determination that the
Company or the Board of Directors must make pursuant to Section 10.03, 10.08,
or 10.13 is conclusive.
SECTION 10.19. TRUSTEE'S DISCLAIMER. The Trustee has no duty to determine
when an adjustment under this Article should be made, how it should be made or
what it should be. The Trustee has no duty to determine whether any provisions
of a supplemental indenture under Section 10.17 are correct. The Trustee makes
no representation as to the validity or value of any securities or assets
issued upon conversion of the Securities. The Trustee shall not be responsible
for the Company's failure to comply with this Article. Each Conversion Agent
other than the Company shall have the same protection under this Section as
the Trustee.
ARTICLE XI
SUBORDINATION OF SECURITIES
SECTION 11.01. SECURITIES SUBORDINATE TO SENIOR Debt. The Company, for
itself, its successors and assigns, covenants and agrees, and each Holder of
the Securities, by his acceptance thereof likewise covenants and agrees that
all Securities issued hereunder shall be subordinated and subject, to the
extent and in the manner herein set forth, in right of payment to the prior
payment in full of all Senior Debt and will not be superior in payment to the
Company's (a) 6% Convertible Subordinated Debentures Due 2002 and (b) 6-3/8%
Convertible Subordinated Debentures Due 2004.
SECTION 11.02. NO PAYMENTS WHEN SENIOR DEBT IN DEFAULT; PAYMENT OVER OF
PROCEEDS UPON DISSOLUTION, ETC. In the event the Company shall default in the
payment on any Senior Debt when the same becomes due and payable, whether at
maturity or at a date fixed for prepayment or by declaration or otherwise,
then, unless and until such default shall have been cured or waived or shall
have ceased to exist, no direct or indirect payment (in cash, property,
securities, by setoff or otherwise) shall be made or agreed to be made on
account of the principal of or interest on the Securities, or in respect of
any redemption, retirement, purchase or other acquisition (except through the
conversion
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thereof) of any of the Securities.
Upon the happening of an event of default with respect to any Senior
Debt, as defined therein or in the instrument under which the same is
outstanding, permitting the holders thereof to accelerate the maturity thereof
(under circumstances when the terms of the preceding paragraph are not
applicable), unless and until such event of default shall have been cured or
waived or shall have ceased to exist, no direct or indirect payment (in cash,
property, securities, by setoff or otherwise) shall be made or agreed to be
made on account of the principal of or interest on the Securities, or in
respect of any redemption, retirement, purchase or other acquisition (except
through the conversion thereof) of any of the Securities.
In the event of:
(a) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding
relating to the Company or its property, or any of the Company's
subsidiaries that are guarantors under Designated Senior Debt,
(b) any proceeding for the liquidation, dissolution or other winding-up
of the Company or its property or any of the Company's subsidiaries that
are guarantors under the amended and restated loan agreement dated as of
June 17, 1993 with a syndicate of banks led by NM Rothschild & Sons
Limited, as the same may be amended from time to time, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings,
(c) any assignment by the Company for the benefit of creditors, or
(d) any other marshalling of the assets of the Company,
all Senior Debt (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution (direct or indirect), whether in cash, property or
securities, by setoff or otherwise, shall be made to any Holder on account of
any Securities, and to that end any payment or
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distribution, whether in cash, property or securities (other than securities
of the Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least
to the extent provided in this Article with respect to the Securities, to the
payment of all Senior Debt at the time outstanding and to any securities
issued in respect thereof under any such plan of reorganization or
readjustment) which would otherwise (but for the subordination provisions
contained in this Article) be payable or deliverable in respect of the
Securities shall be paid or delivered directly to the holders of Senior Debt,
as their respective interests may appear, until all Senior Debt (including any
interest thereon accruing after the commencement of any such proceedings)
shall have been paid in full.
If the Securities are declared due and payable before their stated
maturity because of the occurrence of an Event of Default (under circumstances
where the preceding paragraph is not applicable), no payment (direct or
indirect) shall be made in respect of any securities unless and until all
Senior Debt has been paid in full or such declaration and its consequence
shall have been rescinded and all such defaults shall have been remedied or
waived.
If any payment or distribution (other than securities of the Company or
any other corporation provided for by a plan of reorganization or readjustment
the payment of which is subordinate, at least to the extent provided in this
Article with respect to the Securities, to the payment of all Senior Debt at
the time outstanding and to any securities issued in respect thereof under any
such plan of reorganization or readjustment) shall be received by the Trustee
or the Holders in contravention of any of the terms of this Article and before
all the Senior Debt has been paid in full, such payment or distribution shall
be held in trust for the benefit of, and shall be paid over or delivered and
transferred to, the holders of such Senior Debt at the time outstanding as
their respective interests may appear for application to the payment of Senior
Debt until all Senior Debt (including any interest thereon accruing after the
commencement of any such proceeding referred to in paragraph (a), (b), (c) or
(d) above) shall have been paid in full. If the Trustee or any such Holder
fails to endorse or assign any such payment or distribution as required by
this Section, the Trustee and the Holder of each Security by his
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acceptance thereof authorizes each holder of Senior Debt, any representative
or representatives of holders of Senior Debt and the trustee or trustees under
any indenture pursuant to which any instrument evidencing such Senior Debt may
have been issued to so endorse or assign the same.
No holder of Senior Debt shall be prejudiced in the right to enforce
subordination of the Securities by any act or failure to act on the part of
the Company.
Subject to the payment in full of all Senior Debt, the Holders shall be
subrogated (equally and ratably with the holders of all indebtedness of the
Company which ranks on a parity with the Securities and is entitled to like
rights of subrogation) to the rights of the holders of Senior Debt to receive
payments or distributions applicable to the Senior Debt until the Securities
shall be paid in full, and no such payments or distributions shall, as between
the Company, its creditors other than the holders of Senior Debt, and the
Holders of the Securities, be deemed to be a payment by the Company to or on
account of the Securities. The provisions of this Article are and are intended
solely for the purposes of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of Senior Debt, on the other
hand, and nothing contained in this Article or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Debt and the Holders of the
Securities, the obligation of the Company to pay the Holders the principal of
and interest on the Securities as and when the same shall become due and
payable in accordance with the terms thereof, or prevent the Trustee or the
Holders from exercising all rights, powers and remedies otherwise permitted by
applicable law or under this Indenture, upon a default or Event of Default
hereunder, all subject to the rights of the holders of the Senior Debt to
receive cash, property or securities otherwise payable or deliverable to the
Trustee or the Holders.
Upon any payment or distribution pursuant to this Section, the Trustee
shall be entitled to rely upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in this
Section, are pending, and the Trustee, subject as between the Trustee and the
Holders to the provisions of
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Section 7.01, shall be entitled to rely upon a certificate of the liquidating
trustee or agent or other person making such payment or distribution to the
Trustee or to the Holders for the purpose of ascertaining the persons entitled
to participate in such payment or distribution, the holders of the Senior Debt
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Section. In the event that the Trustee
determines, in good faith, that evidence is required with respect to the right
of any person as a holder of Senior Debt to participate in any payment or
distribution pursuant to this Section, the Trustee may request such person to
furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Debt held by such person, as to the extent to which such
person is entitled to participate in such payment or distribution, and as to
other facts pertinent to the rights of such person under this Section, and if
such evidence is not furnished, the Trustee may defer any payment to such
person pending judicial determination as to the right of such person to
receive such payment.
SECTION 11.03. TRUSTEE TO EFFECTUATE SUBORDINATION. The Holder of each
Security by his acceptance thereof authorizes and directs the Trustee in his
behalf to take such action as may be necessary or appropriate to acknowledge
or effectuate the subordination as provided in this Article and appoints the
Trustee as attorney-in-fact for any and all such purposes.
SECTION 11.04. TRUSTEE NOT CHARGED WITH KNOWLEDGE OF PROHIBITION.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, but subject as between the Trustee and the Holders to the
provisions of Section 7.01, the Trustee shall not be charged with knowledge of
the existence of any Senior Debt, or of any default in the payment of any
Senior Debt, or of any facts which would prohibit the making of any payment of
moneys to or by the Trustee, unless and until three business days after the
Trustee shall have received written notice thereof from the Company or any
holder of Senior Debt or the representative or representatives of such holder;
nor shall the Trustee be charged with knowledge of the curing of any such
default or of the elimination of the
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act or condition preventing any such payment unless and until the Trustee
shall have received an Officers' Certificate to such effect. The provisions of
this Section shall not limit any rights of holders of Senior Debt under this
Article XI to recover from the Holders of Securities any payment made to any
such Holder.
SECTION 11.05. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR Debt. The Trustee
shall be entitled to all the rights set forth in this Article with respect to
any Senior Debt which may at any time be held by it, to the same extent as any
other holder of Senior Debt, and nothing in Section 7.11, or elsewhere in this
Indenture, shall deprive the Trustee of any of its rights as such holder.
SECTION 11.06. ARTICLE APPLICABLE TO PAYING AGENT. In case at any time
any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term "Trustee" as used in this
Article shall in such case (unless the context shall otherwise require) be
construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in
this Article in addition to or in place of the Trustee; PROVIDED, however,
that Sections 11.04 and 11.05 shall not apply to the Company or any Affiliate
of the Company if the Company or such Affiliate acts as Paying Agent.
ARTICLE XII
RIGHT TO REQUIRE REPURCHASE
SECTION 12.01. RIGHT TO REQUIRE REPURCHASE. In the event that there shall
occur a Designated Event with respect to the Company, then each Securityholder
shall have the right, at such Securityholder's option, but subject to the
provisions of Article XI and this Article XII to require the Company to
purchase, and upon exercise of such right the Company shall purchase, all or
any part of such Securityholder's Securities in principal amount of $1,000 or
an integral multiple thereof on the date (the "Repurchase Date") that is 45
days after the date of the Company Notice, at 100% of the principal amount,
together with accrued interest to the Repurchase Date.
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SECTION 12.02. NOTICE; METHOD OF EXERCISING REPURCHASE RIGHT. (a) On or
before the 30th day after the occurrence of a Designated Event, the Company,
or at the request of the Company, the Trustee, shall give notice of the
occurrence of the Designated Event and of the repurchase right set forth
herein arising as a result thereof (the "Company Notice") by first-class mail,
postage pre-paid, to each Holder and each Beneficial Holder of the Securities
at such Holder's or Beneficial Holder's address appearing in the Securities
Register or Participants List. The Company shall also deliver a copy of such
Company Notice to the Trustee and cause a copy of such Company Notice to be
published in a newspaper of general circulation in the Borough of Manhattan,
The City of New York.
Each Company Notice shall state:
(i) the Repurchase Date,
(ii) the date by which the repurchase right must be exercised,
(iii) the price at which the repurchase is to be made, if the repurchase
right is exercised, and
(iv) a description of the procedure which a Securityholder must follow to
exercise a repurchase right.
No failure of the Company to give the foregoing notice shall limit any
Securityholder's right to exercise a repurchase right.
(b) To exercise a repurchase right, a Securityholder shall deliver to the
Company (or an agent designated by the Company for such purpose in the
Company Notice), on or before the 30th day after the date of the Company
Notice, (i) written notice of the Securityholder's exercise of such right,
which notice shall set forth the name of the Securityholder, the principal
amount of the Security or Securities (or portion of a Security) to be
repurchased, and a statement that an election to exercise the repurchase
right is being made thereby, and (ii) the Security or Securities with
respect to which the repurchase right is being exercised, duly endorsed for
transfer to the Company. Such written notice shall be irrevocable. If the
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Repurchase Date falls between any record date for the payment of interest
on the Securities and the next succeeding interest payment date, Securities
to be repurchased must be accompanied by payment of an amount equal to the
interest thereon which the registered Holder thereof is to receive on such
interest payment date.
(c) In the event a repurchase right shall be exercised in accordance with
the terms hereof, the Company shall pay or cause to be paid the price
payable with respect to the Security or Securities as to which the
repurchase right has been exercised in cash to the Securityholder on the
Repurchase Date. In the event that a repurchase right is exercised with
respect to less than the entire principal amount of a surrendered Security,
the Company shall execute and deliver to the Trustee and the Trustee shall
authenticate for issuance in the name of the Securityholder a replacement
Security or Securities in the aggregate principal amount of the
unrepurchased portion of such surrendered Security.
SECTION 12.03. CERTAIN DEFINITIONS. For purposes of Sections 12.01 and
12.02:
(a) A "Designated Event" shall be deemed to have occurred on the date of
consummation of the purchase, merger or other acquisition transaction as
referred to in the definition of a Change in Control.
(b) As used herein, a "Change in Control" of the Company shall be deemed
to have occurred when (i) all or substantially all of the Company's assets
are sold as an entirety to any person or related group of persons; (ii)
there shall be consummated any consolidation or merger of the Company (A)
in which the Company is not the continuing or surviving corporation (other
than a consolidation or merger with a wholly owned subsidiary of the
Company in which all shares of Common Stock outstanding immediately prior
to the effectiveness thereof are changed into or exchanged for the same
consideration) or (B) pursuant to which the Common Stock would be converted
into cash, securities or other property, in each case, other than a
consolidation or merger of the Company in which the holders of the Common
Stock immediately prior to the consolidation or merger have, directly or
indirectly,
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at least a majority of the common stock of the continuing or surviving
corporation immediately after such consolidation or merger, or (iii) any
person, or any persons acting together which would constitute a "group" for
purposes of Section 13(d) of the Exchange Act (other than the Company, any
subsidiary, any employee stock purchase plan, stock option plan or other
stock incentive plan or program, retirement plan or automatic dividend
reinvestment plan or any substantially similar plan of the Company or any
subsidiary or any person holding securities of the Company for or pursuant
to the terms of any such employee benefit plan), together with any
Affiliates thereof, shall beneficially own (as defined in Rule 13d-3 under
the Exchange Act) at least 50% of the total voting power of all classes of
Capital Stock of the Company entitled to vote generally in the election of
directors of the Company.
(c) Notwithstanding paragraph (b) above, a Change in Control shall not be
deemed to have occurred if (i) the Current Market Price of the Common Stock
is at least equal to 105% of the conversion price of the Securities in
effect immediately preceding the time of such Change in Control, or (ii)
all of the consideration (excluding cash payments for fractional shares) in
the transaction giving rise to such Change in Control to the holders of
Common Stock consists of shares of common stock that are, or immediately
upon issuance will be, listed on a national securities exchange or quoted
in the NASDAQ National Market System, and as a result of such transaction
the Securities become convertible solely into such common stock, or (iii)
the consideration in the transaction giving rise to such Change in Control
to the holders of Common Stock consists of cash, securities that are, or
immediately upon issuance will be, listed on a national securities exchange
or quoted in the NASDAQ National Market System, or a combination of cash
and such securities, and the aggregate fair market value of such
consideration (which, in the case of such securities, shall be equal to the
average of the daily closing prices of such securities during the ten
consecutive trading days commencing with the sixth trading day following
consummation of such transaction) is at least 105% of the conversion price
of the Securities in
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effect on the date immediately preceding the closing date of such
transaction.
SECTION 12.04. COMPLIANCE WITH RULE 13E-4. In connection with any
repurchase of Securities pursuant to this Article XII, the Company will comply
with Rule 13e-4 promulgated by the SEC under the Exchange Act, if such Rule is
applicable, and any other applicable rules and regulations of the SEC.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01. TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies, or conflicts with the duties imposed by operation
of Section 318(c) of the TIA, the imposed duties, upon qualification of this
Indenture under the TIA, shall control.
SECTION 13.02. NOTICES. Any notice or communication from the Company or
the Trustee to the other is duly given if in writing and delivered in person
or mailed by first-class mail to the following addresses:
If to the Company, at:
Coeur d'Alene Mines Corporation
505 Front Street
P.O. Box I
Coeur d'Alene, Idaho 83814
If to the Trustee, at:
Bankers Trust Company
Four Albany Street
(4th Floor)
New York, New York 10006
Attention: Corporate Trust and Agency Group
The Company or the Trustee by notice to the other may designate an additional
or different address for subsequent notices or communications.
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Any notice or communication to a Securityholder or a Beneficial Holder
shall be mailed by first-class mail to his address shown on the Securities
Register or the Participants List. Failure to mail a notice or communication
to a Securityholder or any defect in such notice or communication shall not
affect its sufficiency with respect to other Securityholders or Beneficial
Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it. If the Company mails a notice or communication to
Securityholders, it shall mail a copy to the Trustee and each Agent at the
same time.
SECTION 13.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders and Beneficial Holders may communicate pursuant to TIA ss.
312(b) with other Securityholders and Beneficial Holders with respect to their
rights under this Indenture or the Securities. The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA ss. 312(c).
SECTION 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon
any request or application by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent, if any, have been complied with.
SECTION 13.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Every
Officer's Certificate or Opinion of Counsel with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each person signing such Certificate or opinion has
read such covenant or condition and the definitions herein relating
thereto;
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(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
Officer's Certificate or Opinion of Counsel are based;
(c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
SECTION 13.06. RULES BY TRUSTEE AND AGENTS. The Trustee may make
reasonable rules for action by or a meeting of Securityholders. The Registrar,
Paying Agent or Conversion Agent may make reasonable rules and set reasonable
requirements for its functions.
SECTION 13.07. LEGAL HOLIDAYS. A "Legal Holiday" is a Saturday, a Sunday
or a day on which banking institutions are not required to be open. If a
payment date is a Legal Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
SECTION 13.08. NO RECOURSE AGAINST OTHERS. A director, officer, employee
or stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
SECTION 13.09. COUNTERPARTS. This Indenture 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.
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SECTION 13.10. GOVERNING LAW. The internal laws of the State of New York
shall govern this Indenture and the Securities, without regard to the
conflicts of laws provisions thereof.
SECTION 13.11. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This
Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or a subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 13.12. SUCCESSORS. All agreements of the Company in this
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 13.13. SEVERABILITY. In case any provision in this Indenture or
in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 13.14. TABLE OF CONTENTS, HEADINGS, ETC. The Table of Contents,
Cross-Reference Table, and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers or attorneys-in-fact, as the case
may be, thereunto duly authorized, as of the day and year first above written.
COEUR D'ALENE MINES
CORPORATION,
by __________________________
Name: Dennis E. Wheeler
Title: President
[Seal]
Attest:
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<PAGE>
_______________________
Title: Secretary
BANKERS TRUST COMPANY,
as Trustee,
by __________________________
Name:
Title
C-61
EXHIBIT 10(a)
$125,000,000
Coeur d'Alene Mines Corporation
7 1/4% Convertible Subordinated Debentures due 2005
PURCHASE AGREEMENT
October 7, 1997
Lazard Freres & Co. LLC
30 Rockefeller Plaza
New York, New York 10020
Ladies and Gentlemen:
SECTION 1. INTRODUCTORY. The Coeur d'Alene Mines Corporation, an Idaho
corporation (the "Company"), proposes to issue and sell to you (the
"Purchaser") an aggregate of $125,000,000 aggregate principal amount of 7 1/4%
Convertible Subordinated Debentures due 2005 (the "Firm Debentures") to be
issued under an indenture dated as of October 14, 1997 (the "Indenture"),
between the Company and Bankers Trust Company, as trustee (the "Trustee"). The
Company also proposes to sell to the Purchaser, upon the terms and conditions
set forth in Section 3 hereof, up to an additional $18,750,000 aggregate
principal amount of its 7 1/4% Convertible Subordinated Debentures due 2005
(the "Optional Debentures"). The Firm Debentures and the Optional Debentures
are convertible into shares of common stock, par value $1.00 per share
("Common Stock"), of the Company, at a conversion price of $17.45 per share of
Common Stock (which price is subject to adjustment in certain events as
described in the Indenture). The Firm Debentures and the Optional Debentures
are hereinafter sometimes collectively referred to as the "Securities".
<PAGE>
The Purchaser and other holders (including subsequent transferees) of
Securities will be entitled to the benefits of the registration rights
agreement, to be dated as of the Closing Date (as defined below) (the
"Registration Rights Agreement") between the Company and the Purchaser, in the
form attached hereto as Exhibit B. Pursuant to the Registration Rights
Agreement, the Company will agree to file with the United States Securities
and Exchange Commission (the "Commission") under the circumstances set forth
therein a shelf registration statement pursuant to Rule 415 under the
Securities Act relating to the resale of (i) such Securities and (ii) the
shares of Common Stock initially issuable upon conversion of the Securities by
holders thereof, and to use its best efforts to cause such shelf registration
statement to be declared effective.
The Company hereby agrees with the Purchaser as follows:
SECTION 2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company represents and warrants to, and agrees with, the Purchaser that:
(a) A preliminary offering circular, issued October 3, 1997 (the
"Preliminary Offering Circular") and an offering circular, dated October 7,
1997 (the "Offering Circular", in each case including the documents
incorporated therein by reference as described below, have been prepared in
connection with the offering of the Securities and shares of Common Stock
issuable upon conversion thereof. Any reference to the Preliminary Offering
Circular or the Offering Circular shall be deemed to refer to and include
the Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1996 and the Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1997, and June 30, 1997, respectively, each having been
filed with the Commission pursuant to the United States Securities Exchange
Act of 1934, as amended (the "Exchange Act") on or prior to the date of the
Preliminary Offering Circular or the Offering Circular, as the case may be,
and any reference to the Preliminary Offering Circular or the Offering
Circular, as the case may be, as amended or supplemented, as of any
specified date, shall be deemed to include (i) any documents filed with the
Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act
after the date of the
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Preliminary Offering Circular or the Offering Circular, as the case may be,
and prior to such specified date and (ii) any Additional Issuer Information
(as defined in Section 5(d)) furnished by the Company prior to the
completion of the distribution of the Securities; and all documents filed
under the Exchange Act and so deemed to be included in the Preliminary
Offering Circular or the Offering Circular, as the case may be, or any
amendment or supplement thereto are hereinafter called the "Exchange Act
Reports". The Exchange Act Reports, when they were or are filed with the
Commission, conformed or will conform in all material respects to the
applicable requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder. The Preliminary Offering Circular
or the Offering Circular and any amendments or supplements thereto and the
Exchange Act Reports did not and will not, as of their respective dates,
contain an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by the Purchaser expressly
for use therein.
(b) When the Securities are issued and delivered pursuant to this
Agreement, the Securities will not be of the same class (within the meaning
of Rule 144A under the United States Securities Act of 1933, as amended
(the "Securities Act")), as securities which are listed on a national
securities exchange registered under Section 6 of the Exchange Act or
quoted in a U.S. automated inter-dealer quotation system.
(c) The Company is not, and after giving effect to the offering and sale
of the Securities, will not be required to be registered or regulated as an
"investment company", within the meaning of the United States Investment
Company Act of 1940, as amended (the "Investment Company Act").
(d) Within the preceding six months, neither the Company nor any other
person acting on behalf of the Company has offered or sold to any person
any Securities, or any securities of the same or a similar class as the
Securities,
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<PAGE>
other than Securities offered or sold to the Purchasers hereunder. The
Company will take reasonable precautions designed to insure that any offer
or sale, direct or indirect, in the United States or to any U.S. person (as
defined in Rule 902 under the Securities Act) of any Securities or any
substantially similar security issued by the Company, within six months
subsequent to the date on which the distribution of the Securities has been
completed (as notified to the Company by Lazard Freres & Co. LLC), is made
under restrictions and other circumstances reasonably designed not to
affect the status of the offer and sale of the Securities in the United
States and to U.S. persons contemplated by this Agreement as transactions
exempt from the registration provisions of the Securities Act.
SECTION 3. PURCHASE, SALE AND DELIVERY OF SECURITIES. On the basis of the
representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and the Purchaser agree
that the Purchaser will purchase from the Company at the purchase price of 97%
of the principal amount thereof the principal amount of Firm Debentures set
forth opposite such Purchaser's name in Schedule I hereto.
The Company hereby agrees to issue and sell to the Purchaser and, on the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Purchaser shall have
the right to purchase from the Company, pursuant to an option to be exercised
in the 30-day period commencing on the date of this Agreement, up to
$18,750,000 aggregate principal amount of Optional Debentures at the purchase
price of 97% of the principal amount thereof. Optional Debentures may be
purchased solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Debentures.
The Company will deliver the Firm Debentures to you, against payment of
the purchase price therefor by wire transfer in immediately available funds to
an account specified in writing by the Company. Payment for the Firm
Debentures shall be made at the offices of Cravath, Swaine & Moore at 10:00
A.M., New York Time, on October 14, 1997 or at such other place or time not
later than three full business days thereafter as you and the Company
determine (the "Initial Closing Date").
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<PAGE>
The Company will deliver the Optional Debentures to be purchased to you,
against payment of the purchase price therefor by wire transfer in immediately
available funds to an account specified in writing by the Company, at the
offices of Cravath, Swaine & Moore on such date and at such time (the "Option
Closing Date"), as shall be specified in the notice from Lazard Freres & Co.
LLC to the Company exercising the option to purchase Optional Debentures. The
Option Closing Date may be the same as the Initial Closing Date but shall in
no event be earlier than the Initial Closing Date nor earlier than two nor
later than ten business days after the giving of the notice hereinafter
referred to. Such notice may be given, by letter or by telecopy or other
facsimile transmission or by telephone (if subsequently confirmed in writing),
to the Company at any time within 30 days after the date of this Agreement.
The Option Closing Date may be varied by agreement between the Purchaser and
the Company. The Initial Closing Date and the Option Closing Date are herein
collectively referred to as the "Closing Date."
The certificates for all the Firm Debentures and the Optional Debentures
to be delivered will be in such denominations and registered in such names as
you request two full business days prior to the Initial Closing Date or the
Option Closing Date, as the case may be, and will be made available at the
office of Lazard Freres & Co. LLC, New York, New York or, upon your request,
through the facilities of The Depository Trust Company, for checking and
packaging at least one full business day prior to the Initial Closing Date or
the Option Closing Date, as the case may be.
SECTION 4. OFFERING BY PURCHASER. Upon the authorization by you of the
release of the Firm Debentures, the Purchaser proposes to offer the Firm
Debentures for sale upon the terms and conditions set forth in this Agreement
and the Offering Circular and the Purchaser hereby represents and warrants to,
and agrees with the Company that:
(a) It will offer and sell the Securities only to: (i) persons who it
reasonably believes are "qualified institutional buyers") ("QIBS") within
the meaning of Rule 144A under the Securities Act in transactions meeting
the requirements of Rule 144A or (ii) upon the terms and conditions set
forth in Annex A to this Agreement;
(b) It is an Institutional Accredited Investor.
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<PAGE>
SECTION 5. COVENANTS OF THE COMPANY. The Company covenants and agrees
with the Purchaser that:
(a) To prepare the Offering Circular in a form approved by you; to make
no amendment or any supplement to the Offering Circular which shall be
reasonably disapproved by you promptly after reasonable notice thereof; and
to furnish you with copies thereof.
(b) To furnish the Purchasers with 5 copies of the Offering Circular and
each amendment or supplement thereto signed by an authorized officer of the
Company with the independent accountants' report(s) in the Offering
Circular, and any amendment or supplement containing amendments to the
financial statements covered by such report(s), signed by the accountants,
and additional copies thereof in such quantities as you may from time to
time reasonably request, and if, at any time prior to the completion of the
distribution of the Securities, any event shall have occurred as a result
of which the Offering Circular as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Offering
Circular is delivered, not misleading, or, if for any other reason it shall
be necessary or desirable during such same period to amend or supplement
the Offering Circular, to notify you and upon your request to prepare and
furnish without charge to the Purchaser and to any dealer in securities as
many copies as you may from time to time reasonably request of an amended
Offering Circular or a supplement to the Offering Circular which will
correct such statement or omission or effect such compliance.
(c) Not to be or become, at any time prior to the expiration of two years
after the Time of Delivery, an open- end investment company, unit
investment trust, closed-end investment company or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act.
(d) At any time when the Company is not subject to Section 13 or 15(d) of
the Exchange Act, for the benefit of holders from time to time of
Securities, to furnish at its
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<PAGE>
expense, upon request, to holders of Securities and the Common Stock
issuable upon conversion thereof and prospective purchasers of securities
information (the "Additional Issuer Information") satisfying the
requirements of subsection (d)(4)(i) of Rule 144A under the Securities Act.
(e) During the period of two years after the Time of Delivery (or such
shorter period following the latest date of original issuance of the
Securities after which resales of the Securities may be effected by
non-affiliates of the Company in reliance on paragraph (k) of Rule 144
under the Securities Act, or any successor provision thereto), the Company
will not, and will not permit any of its "affiliates" (as defined in Rule
144 under the Securities Act) to, resell any of the Securities which
constitute "restricted securities" under Rule 144 that have been reacquired
by any of them.
(f) Until such time as any Security or any Common Stock issuable upon
conversion thereof is registered under the Securities Act pursuant to the
Registration Rights Agreement and transferred pursuant to such
registration, to include a legend on the Securities and the Common Stock
issuable upon the conversion thereof to the effect set forth under "Notice
to Investors" in the Offering Circular.
(g) The Company will take such action as you may reasonably request, in
cooperation with you, to qualify the Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions of
the United States as you may designate, and will maintain such
qualifications in effect for as long as may be required for the
distribution of the Securities. The Company will file such statements and
reports as may be required by the laws of each jurisdiction in which the
Securities have been qualified as above provided.
(h) During the period beginning from the date hereof and continuing to
the date 90 days after the date of the Offering Circular, the Company will
not offer, sell, contract to sell or otherwise dispose of, (i) any shares
of Common Stock or other capital stock of the Company or any securities
convertible into or exercisable or exchangeable
7
<PAGE>
for its Common Stock or other capital stock, other than (A) the Securities,
(B) Common Stock to be issued upon conversion of the Securities, (C) Common
Stock (or options or rights to purchase the same) which may be issued or
granted in connection with existing employee or director benefit or
compensation plans, (D) Common Stock issued upon conversion, exchange or
exercise of securities outstanding on the date hereof or (E) Common Stock
issued in connection with a business combination transaction approved by
the Company's shareholders or (ii) any debt securities of, or guaranteed
by, the Company, in each case without your prior written consent.
(i) Between the date hereof and the Closing Date, the Company will not do
or authorize any act or thing which would result in an adjustment of the
conversion price of the Securities.
(j) The Company will reserve and keep available at all times, free of
pre-emptive rights, the full number of shares of Common Stock issuable upon
conversion of the Securities.
(k) The Company will use its good faith efforts to list, subject to notice
of issuance and passage of appropriate time periods, the shares of Common
Stock issuable upon conversion of the Securities on the New York and
Pacific Stock Exchanges.
(l) To use its best efforts to cause the Securities to be eligible for the
PORTAL trading system of the National Association of Securities Dealers,
Inc.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE PURCHASER. The
obligations of the Purchaser to purchase and pay for the Securities on the
Initial Closing Date will be subject to the accuracy of the representations
and warranties on the part of the Company herein as of the date hereof and as
of the Initial Closing Date with the same force and effect as if made as of
that date, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of their obligations hereunder and to the following additional
conditions precedent:
(a) You shall not have advised the Company that the Offering Circular, or
any amendment or supplement thereto,
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<PAGE>
contains any untrue statement of fact or omits to state any fact which, you
have concluded, is material and in the case of an omission is required to
be stated therein or is neces sary to make the statements therein not
misleading.
(b) You shall have received a favorable opinion of Freedman, Levy, Kroll
& Simonds, counsel for the Company, dated the Initial Closing Date, to the
effect that:
(i) Each of the Company, Coeur Alaska, Inc., Coeur Rochester, Inc.,
CDE Chilean Mining Corporation, Callahan Mining Corporation, Coeur New
Zealand, Inc., and Silver Valley Resources Corporation (individually a
"Subsidiary" and collectively the "Subsidiaries") has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or organized,
with full corporate power and authority to own its properties and conduct
its business as described in the Offering Circular, and is duly qualified
to do business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification wherein it
owns or leases material prop erties or conducts material business.
(ii) All the outstanding shares of capital stock of each Subsidiary
have been duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Offering
Circular, all outstanding shares of capital stock of the Subsidiaries are
owned by the Company either directly or through wholly owned subsidiaries
free and clear of any perfected security interest and, to the knowledge
of such counsel, after due inquiry, any other security interests, claims,
liens or encumbrances.
(iii) This Agreement and the Registration Rights Agreement have been
duly authorized, executed and delivered by the Company.
(iv) The Securities and the capital stock of the Company conform in
all material respects to the description thereof contained in the
Offering Circular; the Indenture has been duly authorized, executed and
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delivered by the Company and the Trustee, and constitutes a legal, valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms (subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
affecting creditors' rights generally from time to time in effect, and
subject, as to enforceability, to general principles of equity,
regardless of whether such enforceability is considered in a proceeding
in law or at equity); and the Securities have been duly authorized, and
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Purchaser pursuant to this
Agreement, the Securities will constitute the legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture
enforceable against the Company in accordance with their terms (subject
to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws affecting creditors' rights
generally from time to time in effect, and subject, as to enforceability,
to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in law or at equity).
(v) The shares of Common Stock initially issuable upon conversion of
the Securities have been duly and validly authorized and reserved for
issuance upon such conversion and, when issued upon conversion, will be
validly issued, fully paid and nonassessable.
(vi) Such counsel has no reason to believe that the Offering Circular
includes any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(vii) The statements set forth in the Offering Circular under the
headings "Description of the Debentures" and, "Description of Capital
Stock", insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein fairly present the
information called for with
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respect to such legal matters, documents and proceedings.
(viii) No consent, approval, authorization, order, filing,
registration or qualification of or with any court or governmental
authority or agency is required for the issue and sale of the Securities
or the consummation of the transactions contemplated by this Agreement,
except such as may be required and have been obtained under the Act and
such as may be required under state securities or Blue Sky laws in
connection with the distribution of the Securities by the Purchaser; and,
the issue and sale of the Securities, the execution and delivery of the
Indenture, this Agreement and the Registration Rights Agreement by the
Company and the consummation of the transactions contemplated herein and
therein will not conflict with or constitute a breach of, or default
under any contract, indenture, mortgage, loan agreement, note, lease or
other instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, nor
will such action result in any violation of the provisions of the charter
or by-laws of the Company, or any law, administrative regulation or
administrative or court decree or order applicable to the Company or any
of its subsidiaries.
(ix) To the best knowledge of such counsel and except as set forth in
the Offering Circular, there is no pending or threatened action, suit or
proceeding before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its subsidiaries which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position, stockholders' equity
or results of operation of the Company and its subsidiaries, taken as a
whole.
(x) The Exchange Act Reports and any other documents incorporated by
reference in the Offering Circular as amended or supplemented (other than
the financial statements and related schedules therein, as to which such
counsel need express no opinion), when
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they were filed with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act, and the rules and
regulations of the Commission thereunder; and such counsel has no reason
to believe that any of such documents, when they were so filed, contained
an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such documents were so
filed, not misleading.
(xi) Assuming (i) the accuracy of, and compliance with, the
representations, warranties and covenants by the Company in Sections
2(b), 2(d), 2(e), 5(d), 5(e) and 5(f) and by you contained in Section 3
and Annex A of this Agreement, (ii) the compliance by you with the
offering and transfer procedures and restrictions described in the
Offering Circular and the Purchase Agreement and (iii) the accuracy of,
and compliance with, the representations, warranties and covenants of
each of the purchasers to whom you initially resell the Securities as
specified in the Offering Circular, no registration of the Securities
under the Securities Act, and no qualification of the Indenture under the
TIA with respect thereto, is required for the offer and sale by the
Company and the offer and initial resale of the Securities by the
Purchasers in the manner contemplated by this Agreement; PROVIDED,
HOWEVER, we express no opinion as to any subsequent resale of the
Securities.
(xii) The Company is not required to be registered or regulated as an
"investment company" within the meaning of the Investment Company Act.
In rendering such opinion, such counsel may rely (x) as to matters involving
the application of laws of any jurisdiction other than the State of Idaho or
the United States, to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel of good standing whom they believe
to be reliable and who are satisfactory to counsel for the Purchaser and (y)
as to matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. References to the
Offering Circular in this paragraph (c) include any supplements thereto at the
Closing Date.
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(c) You shall have received from Cravath, Swaine & Moore, counsel for the
Purchaser, an opinion, dated the Initial Closing Date, with respect to such
matters as you may reasonably request.
(d) You shall have received from the President or any Senior Vice
President and a principal financial or accounting officer of the Company a
certificate, dated the Initial Closing Date, in which such officers, to the
best of their knowledge and after reasonable investigation, shall state (i)
such officers have carefully examined the Offering Circular, (ii) in their
opinion, as of its date, the Offering Circular did not include any untrue
statement of a material fact and did not omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading and since such date, no event
has occurred which should have been set forth in a supplement or amendment
to the Offering Circular, (iii) that there has not been, since the
respective dates as of which information is given in the Offering Circular,
any material adverse change in the condition, financial or otherwise,
earnings, business or prospects of the Company and its subsidiaries
considered as a whole, whether or not arising in the ordinary course of
business and (iv) the representations and warranties of the Company
contained in Section 2 are true and correct with the same force and effect
as though made on and as of the Initial Closing Date and the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Initial Closing Date.
(e) You shall have received from Ernst & Young, independent auditors, two
letters, the first dated the date of this Agreement and the other dated
such Initial Closing Date, addressed to the Purchaser, substantially in the
form of Annex B hereto with such variations as are reasonably acceptable to
you.
(f) At the Initial Closing Date counsel for the Purchaser shall have been
furnished with such further information, other documents and opinions as
they may reasonably require.
13
<PAGE>
(g) The Common Stock issuable upon conversion of the Securities shall
have been duly listed, subject to notice of issuance, on the New York and
Pacific Stock Exchanges.
(h) Subsequent to the execution and delivery of this Agreement and prior
to the Closing Date, there shall not have been any downgrading, nor shall
any notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction of
the possible change, in the rating accorded any of the Company's securities
(including the Securities) by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2) under
the Act.
The several obligations of the Purchaser to purchase the Optional
Debentures hereunder are subject to (i) the accuracy of and compliance with
the representations and warranties of the Sellers contained herein on and as
of the Option Closing Date, (ii) satisfaction on and as of the Option Closing
Date of the conditions set forth in subsections (a) to (i) of this Section 6
inclusive (and for purposes thereof each reference therein to the Initial
Closing Date shall be deemed to refer to the Option Closing Date) and (iii)
the absence of circumstances on or prior to the Option Closing Date which
would permit termination of this Agreement pursuant to Section 10.
SECTION 7. PAYMENT OF EXPENSES. The Company will pay all costs, expenses,
fees, disbursements and taxes incident to (i) the preparation by the Company,
printing and distribution of the Preliminary Offering Circular, the Offering
Circular and all amendments and supplements to either of them, (ii) the
printing, reproduction and distribution of this Agreement, the Registration
Rights Agreement, and all other underwriting and selling group documents by
mail, telex or other means, (iii) the issuance by the Company of the
Securities, (iv), if required, the registration or qualification of the
Securities for offer and sale under the securities or Blue Sky laws of the
several states and the preparation, printing and distribution of Preliminary
and Supplemental Blue Sky Memoranda and Legal Investment Survey (including the
reasonable fees and disbursements of your counsel relating to the foregoing),
(v) fees and expenses, if any, incurred in connection with the listing of the
Securities or the Common Stock issuable upon conversion of the Securities on
any stock exchange, (vi) filings and clearance with the National
14
<PAGE>
Association of Securities Dealers, Inc. in connection with the offering, (vii)
the fees and expenses of the Registrar and Transfer Agent for the Securities
and its counsel and (viii) the performance by the Company of its other
obligations under this Agreement.
If the sale of the Securities provided for herein is not consummated
because of the failure to satisfy any condition to the obligations of the
Purchaser set forth in Section 6 hereof, because of any termination pursuant
to Section 10 hereof or because of any refusal, failure or inability of the
Company to perform any agreement herein or comply with any provision hereof
other than by reason of a default by the Purchaser, the Company shall
reimburse you for all of your out-of-pocket expenses incurred in connection
with marketing and preparing for the offering of the Securities, including the
reasonable fees and disbursements of counsel for the Purchaser.
SECTION 8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless the Purchaser and
each person, if any, who controls the Purchaser within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (or actions in respect
thereof) (including, without limiting the foregoing, the reasonable legal and
other expenses incurred in connection with investigating or defending or
preparing to defend or appearing as a third party witness in connection with
any such loss, claim, damage, liability or action, as such expenses are
incurred) arising out of or based on any untrue statement or alleged untrue
statement of a material fact contained in the Offering Circular or any
Preliminary Offering Circular, or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or expenses are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon the
following information furnished to the Company by you in (i) the last
paragraph of text on the cover page of the Offering Circular concerning the
terms of the offering by the Purchaser, (ii) the first paragraph on page 3 of
the Offering Circular concerning over-allotment and stabilization by the
Purchaser and (iii) the third paragraph of text under the caption "Plan of
Distribution" in the Offering Circular concerning the terms of
15
<PAGE>
the offering by the Purchaser (all of the foregoing the "Purchaser's
Information"). This indemnity agreement will be in addition to any liability
which the Company may otherwise have to the persons referred to above in this
Section 8(a).
(b) The Purchaser agrees to indemnify and hold harmless the Company, the
officers and directors of the Company and each person, if any, who controls
the Company within the meaning of either Section 15 of the Act or Section 20
of the Exchange Act from and against any and all losses, claims, damages and
liabilities (or actions in respect thereof) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Offering Circular
or any Preliminary Offering Circular, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only with
reference to the Purchaser's Information. This indemnity agreement will be in
addition to any liability which the Purchaser may otherwise have to the
persons referred to above in this Section 8(b).
(c) In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (hereinafter called the indemnified
party) shall promptly notify the person against whom such indemnity may be
sought (hereinafter called the indemnifying party) in writing; however, the
omission to so notify the indemnifying party shall relieve the indemnifying
party from liability only to the extent prejudiced thereby. The indemnifying
party, upon request of the indemnified party, shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others that the
indemnifying party may designate and shall pay the fees and disbursements of
such counsel related to such proceeding. In any such action or proceeding any
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual
16
<PAGE>
or potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (a) the reasonable fees
and expenses of more than one separate firm (in addition to any local counsel)
for the Purchaser and all persons, if any, who control the Purchaser within
the meaning of either Section 15 of the Act or Section 20 of the Exchange Act,
(b) the reasonable fees and expenses of more than one separate firm (in
addition to any local counsel) for the Company, its directors, and each
person, if any, who controls the Company within the meaning of either such
Section of the Act, and that all fees and expenses to be paid pursuant to each
of clauses (a) and (b) of this sentence shall be reimbursed as they are
incurred. In the case of any such separate firm for the Purchaser and such
control persons of the Purchaser, such firm shall be designated in writing by
Lazard Freres & Co. LLC. In the case of any such separate firm for the
Company, and such directors, officers and control persons of the Company, such
firm shall be designated in writing by the Company.
(d) If the indemnification provided for in this Section 8 is insufficient
or unavailable to an indemnified party in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein,
then each indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities and expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Purchaser on the other from the offering of
the Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law or if the indemnified party shall have failed to
the prejudice of the indemnifying party to give the notice required by Section
8(c), in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and the Purchaser on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Purchaser on the other shall be deemed to be in the same proportions
as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commission received by the Purchaser, in each case as set
17
<PAGE>
forth in the table on the cover page of the Offering Circular. The relative
fault of the Company on the one hand and the Purchaser on the other 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 by the
Purchaser and the parties, relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) The Company and the Purchaser agree that it would not be just and
equitable if contribution pursuant to Section 8(d) were 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 immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities (or actions in respect thereof)
referred to in the immediately preceding paragraph shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of Section 8(e), in no event shall the
Purchaser be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Purchaser 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 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in the
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, including indemnity and contribution agreements, shall remain
operative and in full force and effect, regardless of any termination of this
Agreement, or any investigation, or any statement as to the results thereof,
made by or on behalf of the Purchaser or any person controlling the Purchaser
or by or on behalf of the Company, its officers or directors or controlling
persons, and shall survive acceptance of and payment for Securities hereunder.
18
<PAGE>
SECTION 10. TERMINATION. This Agreement may be terminated for any reason
at any time prior to the delivery of and payment for the Securities on the
Initial Closing Date or the Option Closing Date, as the case may be, by Lazard
Freres & Co. LLC upon the giving of written notice of such termination to the
Company, if prior to such time (i) there has been, since the respective dates
as of which information is given in the Offering Circular, any material
adverse change in the condition, financial or otherwise, earnings, business or
prospects of the Company and its subsidiaries considered as a whole, whether
or not arising in the ordinary course of business or (ii) there has occurred
any outbreak or escalation of hostilities or other calamity or crisis or
material change in existing national or international financial, political,
economic or securities market conditions, the effect of which is such as to
make it, in the judgment of Lazard Freres & Co. LLC, impracticable or
inadvisable to market the Securities in the manner contemplated in the
Offering Circular or enforce contracts for the sale of the Securities, or
(iii) trading of the Common Stock of the Company has been suspended by the New
York Stock Exchange, or the Commission, or trading generally on either the
American Stock Exchange or the New York Stock Exchange has been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said exchanges or by
order of the Commission or any other governmental authority, or a banking
moratorium has been declared by either Federal or New York authorities. In the
event of any such termination, the provisions of Section 7, the indemnity
agreement and contribution provisions set forth in Section 8, and the
provisions of Sections 9 and 13 shall remain in effect.
SECTION 11. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Purchaser shall be directed to you c/o Lazard Freres & Co. LLC, 30 Rockefeller
Plaza, New York, NY 10020, Attention: Syndicate Department; and notices to the
Company shall be directed to it at 505 Front Avenue Coeur d'Alene, Idaho
83814, telex no. (208) 667-2213, attention of the Secretary with a copy to the
Treasurer.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Company, the Purchaser, any controlling persons referred to
herein and their respective
19
<PAGE>
successors and assigns. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person, firm or corporation
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. No purchaser of Securities from
the Purchaser shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
SECTION 14. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign this Agreement and return to us counterparts hereof.
Very truly yours,
COEUR D'ALENE MINES CORPORATION,
By___________________________________
Name:
Title:
Confirmed and Accepted, as of the
date first above written:
LAZARD FRERES & CO. LLC.
Lazard Freres & Co. LLC
20
<PAGE>
<TABLE>
SCHEDULE I
<CAPTION>
Aggregate
Purchasers Principal Amount
---------- Of Securities
To Be Purchased
----------------
<S> <C>
Lazard Freres & Co. LLC.................................... $125,000,000
---------------
Total................................................. $125,000,000
===============
</TABLE>
<PAGE>
ANNEX A
(1) The Securities have not been and will not be registered under the
Securities Act and may not be offered or sold within the United States or to,
or for the account or benefit of, U.S. persons except in accordance with
Regulation S under the Securities Act or pursuant to an exemption from the
registration requirements of the Securities Act. The Purchaser represents that
it has offered and sold the Securities, and will offer and sell the Securities
(i) as part of their distribution at any time and (ii) otherwise until 40 days
after the later of the commencement of the offering and the Time of Delivery,
only in accordance with Rule 903 of Regulation S or, Rule 144A under the
Securities Act. Accordingly, the Purchaser agrees that neither it, its
affiliates nor any persons acting on its or their behalf has engaged or will
engage in any directed selling efforts with respect to the Securities, and it
and they have complied and will comply with the offering restrictions
requirement of Regulation S. The Purchaser agrees that, at or prior to
confirmation of sale of Securities (other than a sale pursuant to Rule 144A),
it will have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases Securities from it during
the restricted period a confirmation or notice to substantially the following
effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered and
sold within the United States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the offering and the
closing date, except in either case in accordance with Regulation S (or
Rule 144A if available) under the Securities Act. Terms used above have the
meaning given to them by Regulation S."
Terms used in this paragraph have the meanings given to them by Regulation S.
The Purchaser further agrees that it has not entered and will not enter
into any contractual arrangement with respect to the distribution or delivery
of the Securities, except with its affiliates or with the prior written
consent of the Company.
<PAGE>
(2) Notwithstanding the foregoing, Securities in registered form may be
offered, sold and delivered by the Purchasers in the United States and to U.S.
persons pursuant to Section 3 of this Agreement without delivery of the
written statement required by paragraph (1) above.
(3) The Purchaser further represents and agrees that (i) it has not
offered or sold and prior to the date six months after the date of issue of
the Securities will not offer or sell any Securities to persons in the United
Kingdom except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995, (b) it
has complied, and will comply, with all applicable provisions of the Financial
Services Act of 1986 of Great Britain with respect to anything done by it in
relation to the Securities in, from or otherwise involving the United Kingdom,
and (c) it has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the issuance of
the Securities to a person who is of a kind described in Article 11(3) of the
Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order
1996 of Great Britain or is a person to whom the document may otherwise
lawfully be issued or passed on.
(4) The Purchaser agrees that it will not offer, sell or deliver any of
the Securities in any jurisdiction outside the United States except under
circumstances that will result in compliance with the applicable laws thereof,
and that it will take at its own expense whatever action is required to permit
its purchase and resale of the Securities in such jurisdictions. The Purchaser
understands that no action has been taken to permit a public offering in any
jurisdiction outside the United States where action would be required for such
purpose. The Purchaser agrees to cause any advertisement of the Securities to
be published in any newspaper or periodical or posted in any public place and
to issue any circular relating to the Securities, only at its own risk and
expense.
EXHIBIT 10(b)
Coeur d'Alene Mines Corporation
7 1/4% Convertible Subordinated Debentures
due 2005
REGISTRATION RIGHTS AGREEMENT
Dated as of
October 15, 1997
Lazard Freres & Co. LLC
30 Rockefeller Plaza
New York, New York 10020
Ladies and Gentlemen:
Coeur d'Alene Mines Corporation, an Idaho corporation (the "Company"),
proposes to issue and sell to the Purchaser (as defined herein) upon the terms
set forth in a purchase agreement dated October 7, 1997 (the "Purchase
Agreement") between the Purchaser and the Company, its 7 1/4% Convertible
Subordinated Debentures due 2005 (the "Securities"). As an inducement to the
Purchaser to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Purchaser thereunder, the Company agrees
with the Purchaser (i) for the benefit of the Purchaser and (ii) for the
benefit of the holders from time to time of the Securities and the Common
Stock, par value $1.00 per share (the "Common Stock"), of the Company issuable
upon conversion of the Securities (collectively, the "Registrable
Securities"), including the Purchaser (each of the foregoing a "Holder" and,
together, the "Holders"), as follows:
SECTION 1. DEFINITIONS. (a) Capitalized terms used herein without
definition shall have their respective meanings set forth in or pursuant to
the Purchase Agreement or the Offering Circular, dated October 8, 1997, in
respect of the Securities. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
<PAGE>
"Act" or "Securities Act" means the United States Securities Act of 1933,
as amended.
"Affiliate" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with such specified person. For purposes of this definition,
control of a person means the power, direct or indirect, to direct or cause
the direction of the management and policies of such person whether by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Commission" means the United States Securities and Exchange Commission.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning set forth in Section 2 hereof.
"Electing Holder" has the meaning assigned thereto in Section 3(a)(3)
hereof.
"Exchange Act" means the United States Securities and Exchange Act of
1934, as amended.
"Indenture" means the Indenture, dated as of October 15, 1997, between
the Company and Bankers Trust Company, as amended and supplemented from
time to time in accordance with is terms.
"Issue Date" has the meaning set forth in Section 2 hereof.
"Managing Underwriters" means the investment banker or investment bankers
and manager or managers that shall administer an underwritten offering, if
any, as set forth in Section 6 hereof.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
2
<PAGE>
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act),
as amended or supplemented by any prospectus supplement, with respect to
the terms of the offering of any portion of the Registrable Securities.
"Purchaser" means Lazard Freres & Co. LLC.
"Registrable Securities" means all or any portion of the Securities
issued from time to time under the Indenture in registered form and the
shares of Common Stock issuable upon conversion of such Securities,
including any Securities initially issued in bearer form and constituting
the unsold allotment of a distributor (within the meaning of Regulation S
under the Securities Act) of such Securities and later exchanged for
Securities in registered form; PROVIDED, HOWEVER, that a security ceases to
be a Registrable Security when it is no longer a Restricted Security.
"Restricted Security" means any Security or share of Common Stock
issuable upon conversion thereof except any such Security or share of
Common Stock which (i) has been effectively registered under the Securities
Act and sold in a manner contemplated by the Shelf Registration Statement,
(ii) has been transferred in compliance with Rule 144 under the Securities
Act (or any successor provision thereto), (iii) has been sold in compliance
with Regulation S under the Securities Act (or any successor thereto) and
does not constitute the unsold allotment of a distributor within the
meaning of Regulation S under the Securities Act, or (iv) has otherwise
been transferred and a new Security or share of Common Stock not subject to
transfer restrictions under the Securities Act has been delivered by or on
behalf of the Company in accordance with Section 2.06 of the Indenture.
"Shelf Registration" means a registration effected pursuant to Section 2
hereof.
3
<PAGE>
"Shelf Registration Statement" means a shelf registration statement of
the Company pursuant to the provisions of Section 2 hereof filed with the
Commission which covers some or all of the Registrable Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any
similar rule that may be adopted by the Commission, amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Shelf Registration Statement.
(b) Wherever there is a reference in this Agreement to a percentage of
the "principal amount" of Registrable Securities, Common Stock shall be
treated as representing the principal amount of Securities which was
surrendered for conversion or exchange in order to receive such number of
shares of Common Stock.
SECTION 2. SHELF REGISTRATION. (a) The Company shall, within 90 days
following the date of original issuance (the "Issue Date") of the
Securities, file with the Commission a Shelf Registration Statement
relating to the offer and sale of the Registrable Securities by the Holders
from time to time in accordance with the methods of distribution elected by
such Holders and set forth in such Shelf Registration Statement and,
thereafter, shall use its best efforts to cause such Shelf Registration
Statement to be declared effective under the Act within 150 calendar days
after the Issue Date; PROVIDED, however, that no Holder shall be entitled
to have the Registrable Securities held by it covered by such Shelf
Registration unless such Holder is an Electing Holder.
(b) The Company shall use its best efforts:
(i) to keep the Shelf Registration Statement con tinuously effective in
order to permit the Prospectus forming part thereof to be usable by Holders
until October 31, 1999 or such shorter period that will terminate upon the
earlier of the following: (A) when all the Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement or (B) when all shares of Common
4
<PAGE>
Stock issued upon conversion of any such Securities that had not been sold
pursuant to the Shelf Registration Statement have been sold pursuant to the
Shelf Registration Statement (in either such case, such period being called
the "Effectiveness Period"); and
(ii) after the date the Shelf Registration Statement becomes effective,
within 35 days after the request of any holder of Registrable Securities
that is not then an Electing Holder, to take any action necessary and
required by law to enable such holder to use the Prospectus forming a part
thereof for resales of Registrable Securities, including, without
limitation, any action necessary to identify such holder as a selling
securityholder in the Shelf Registration Statement; PROVIDED, HOWEVER, that
nothing in this subparagraph shall relieve such holder of the obligation to
return a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(a)(2) hereof; and
(iii) if at any time, the Securities, pursuant to Article V of the
Indenture, are convertible into securities other than Common Stock, the
Company shall, or shall cause any successor under the Indenture to, cause
such securities to be included in the Shelf Registration Statement no later
than the date on which the Securities may then be convertible into such
securities.
The Company shall be deemed not to have used its best efforts to keep the
Shelf Registration Statement effective during the requisite period if the
Company voluntarily takes any action that would result in Holders of
Registrable Securities covered thereby not being able to offer and sell any
such Registrable Securities during that period, unless (i) such action in
required by applicable law, or (ii) the continued effectiveness of the Shelf
Registration Statement would require the Company to disclose a material
financing, acquisition or other corporate trans action, and the Board of
Directors shall have determined in good faith that such disclosure is not in
the best interests of the Company and its stockholders; provided that in the
case of clause (i) above, the Company thereafter must promptly comply with the
requirements of paragraph 3(j) below, if applicable and in the case of clauses
(i) and (ii) above, the Company shall be entitled to suspend the use of
5
<PAGE>
any prospectus forming a part of an effective Registration Statement under
this Section 2 for a reasonable period of time (a "DELAY PERIOD"), except that
the aggregate number of days included in all Delay Periods during any
consecutive 12 months shall not exceed the aggregate of 90 days (whether or
not consecutive).
SECTION 3. REGISTRATION PROCEDURES. In connection with any Shelf
Registration Statement, the following provisions shall apply:
(a) (1) Not less than 30 calendar days prior to the Effective Time of the
Shelf Registration Statement, the Company shall mail the Notice and
Questionnaire to the holders of Registrable Securities. No holder shall be
entitled to be named as a selling securityholder in the Shelf Registration
Statement as of the Effective Time, and no holder shall be entitled to use the
Prospectus forming a part thereof for resales of Registrable Securities at any
time, unless such holder has returned a completed and signed Notice and
Questionnaire to the Company by the deadline for response set forth therein;
PROVIDED, HOWEVER, holders of Registrable Securities shall have at least 28
calendar days from the date on which the Notice and Questionnaire is first
mailed to such holders to return a completed and signed Notice and
Questionnaire to the Company.
(2) After the Effective Time of the Shelf Registration Statement, the
Company shall, upon the request of any holder of Registrable Securities
that is not then an Electing Holder, promptly send a Notice and
Questionnaire to such holder. The Company shall not be required to take
any action to name such holder as a selling securityholder in the Shelf
Registration Statement or to enable such holder to use the Prospectus
forming a part thereof for resales of Registrable Securities until such
holder has returned a completed and signed Notice and Questionnaire to
the Company.
(3) The term "Electing Holder" shall mean any holder of Registrable
Securities that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(a)(1) or
3(a)(2) hereof.
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(b) The Company shall furnish to the Purchaser, prior to the filing
thereof with the Commission, a copy of any Shelf Registration Statement,
and each amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein.
(c) The Company shall promptly take such action as may be necessary so
that (i) any Shelf Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any amendment or supplement thereto
(and each report or other document incorporated therein by reference in
each case) complies in all material respects with the Securities Act and
the Exchange Act and the respective rules and regulations thereunder, (ii)
any Shelf Registration Statement and any amendment thereto does not, when
it becomes effective, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any Prospectus forming
part of any Shelf Registration Statement, and any amendment or supplement
to such Prospectus, does not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements,
in the light of the circumstances under which they were made, not
misleading.
(d) (1) The Company shall advise the Purchaser and, in the case of clause
(i), the Electing Holders, and, if requested by the Purchaser or any such
Electing Holder, confirm such advice in writing:
(i) when a Shelf Registration Statement and any amendment thereto has
been filed with the Commission and when the Shelf Registration Statement
or any post-effective amendment thereto has become effective; and
(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.
(2) The Company shall advise the Purchaser and the Electing Holders and,
if requested by the Purchaser or any such Electing Holder, confirm such
advice in writing of:
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(i) the issuance by the Commission of any stop order suspending
effectiveness of the Shelf Registration Statement or the initiation of
any proceedings for that purpose;
(ii) the receipt by the Company of any notification with respect to
the suspension of the qualification of the securities included therein
for sale in any jurisdiction or the initiation of any proceeding for such
purpose; and
(iii) the happening of any event that requires the making of any
changes in the Shelf Registration Statement or the Prospectus so that, as
of such date, the Shelf Registration Statement and the Prospectus do not
contain an untrue statement of a material fact and do not omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading (which advice
shall be accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made).
(e) The Company shall use its best efforts to prevent the issuance and,
if issued, to obtain the withdrawal, of any order suspending the
effectiveness of any Shelf Registration Statement at the earliest possible
time.
(f) The Company shall furnish to each Electing Holder included within the
coverage of any Shelf Registration Statement, without charge, at least one
copy of such Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the Electing
Holder so requests in writing, all reports, other documents and exhibits
that are filed with or incorporated by reference in the Shelf Registration
Statement.
(g) The Company shall, during the Effectiveness Period, deliver to each
Electing Holder of Registrable Securities included within the coverage of
any Shelf
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Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus, if any) included in such Shelf
Registration Statement and any amendment or supplement thereto as such
Electing Holder may reasonably request; and the Company consents (except
during the continuance of any event described in Section 3(c)(2)(iii)) to
the use of the Prospectus or any amendment or supplement thereto by each of
the Electing Holders of Registrable Securities in connection with the
offering and sale of the Registrable Securities covered by the Prospectus
or any amendment or supplement thereto during the Shelf Registration
Period.
(h) Prior to any offering of Registrable Securities pursuant to any Shelf
Registration Statement, the Company shall register or qualify or cooperate
with the Electing Holders of Registrable Securities included therein and
their respective counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale under the
securities or, if required, blue sky laws of such jurisdictions in the
United States as any such Electing Holders reasonably request 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 Registrable Securities
covered by such Shelf Registration Statement; PROVIDED, HOWEVER, that in no
event shall the Company be obligated to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would
not otherwise be required to so qualify but for this Section 3(h), (ii)
file any general consent to service of process in any jurisdiction where it
is not as of the date hereof then so subject or (iii) subject itself to
taxation in any such jurisdiction if it is not so subject.
(i) Unless any Registrable Securities shall be in book-entry only form,
the Company shall cooperate with the Electing Holders of Registrable
Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold pursuant to any
Shelf Registration Statement free of any restrictive legends and in such
permitted denominations and registered in such names as Electing Holders
may request in connection with the sale of Registrable Securities pursuant
to such Shelf Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraph
3(c)(2)(iii) above, the Company shall promptly
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<PAGE>
prepare a post-effective amendment to any Shelf Registration Statement or
an amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to purchasers of the
Registrable Securities included therein, the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If the Company notifies the
Electing Holders of the occurrence of any event contemplated by paragraph
3(c)(2)(iii) above, the Electing Holders shall suspend the use of the
Prospectus until the requisite changes to the Prospectus have been made.
(k) Not later than the effective date of any Shelf Registration Statement
hereunder, the Company shall provide a CUSIP number for the Securities
registered under such Shelf Registration Statement.
(l) The Company shall use its best efforts to comply with all applicable
rules and regulations of the Commission, and to make generally available to
its securityholders as soon as practicable, but in any event not later than
eighteen months after (i) the effective date (as defined in Rule 158(c)
under the Securities Act) of the Shelf Registration Statement, (ii) the
effective date of each post-effective amendment to the Shelf Registration
Statement, and (iii) the date of each filing by the Company with the
Commission of an Annual Report on Form 10-K that is incorporated by
reference in the Shelf Registration Statement, an earning statement of the
Company and its sub sidiaries complying with Section 11(a) of the
Securities Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158).
(m) Not later than the Effective Time of the Shelf Registration
Statement, the Company shall cause the Indenture to be qualified under the
Trust Indenture Act; in connection with such qualification, the Company
shall cooperate with the Trustee under the Indenture and the Electing
Holders (as defined in the Indenture) to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the Trust Indenture Act; and the Company shall
execute, and shall use all reasonable efforts to cause the Trustee to
execute, all documents that may be required to effect such changes and all
other forms and documents required to be filed with the Commission to
enable such Indenture to be so
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<PAGE>
qualified in a timely manner. In the event that any such amendment or
modification referred to in this Section 3(m) involves the appointment of a
new trustee under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(n) The Company may require each Electing Holder of Registrable
Securities to be sold pursuant to any Shelf Registration Statement to
furnish to the Company such information regarding the Electing Holder and
the distribution of such Registrable Securities as may be required by
applicable law or regulation for inclusion in such Shelf Registration
Statement and the Company may exclude from such registration the
Registrable Securities of any Electing Holder that fails to furnish such
information within a reasonable time after receiving such request.
(o) The Company shall, if requested, promptly include or incorporate in a
Prospectus supplement or post-effective amendment to a Shelf Registration
Statement, such information as the Managing Underwriters reasonably agree
should be included therein and to which the Company does not reasonably
object and shall make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after they are notified of
the matters to be included or incorporated in such Prospectus supplement or
post-effective amendment.
(p) The Company shall enter into such customary agreements (including
underwriting agreements in customary form) to take all other appropriate
actions in order to expedite or facilitate the registration or the
disposition of the Registrable Securities, and in connection therewith, if
an underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures substantially identical to those
set forth in Section 5 (or such other provisions and procedures acceptable
to the Managing Underwriters, if any) with respect to all parties to be
indemnified pursuant to Section 5.
(q) The Company shall:
(i) make reasonably available for inspection by the Electing Holders
of Registrable Securities to be registered thereunder, any underwriter
participating in any disposition pursuant to such
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Shelf Registration Statement, and any attorney, accountant or other agent
retained by such Electing Holders or any such underwriter all relevant
financial and other records, pertinent corporate documents and properties
of the Company and its subsidiaries;
(ii) cause the Company's officers, directors and employees to make
reasonably available for inspection all relevant information reasonably
requested by such Electing Holders or any such underwriter, attorney,
accountant or agent in connection with any such Shelf Registration
Statement, in each case, as is customary for similar due diligence
examinations; PROVIDED, HOWEVER, that any information that is designated
in writing by the Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by such Electing
Holders or any such underwriter, attorney, accountant or agent, unless
such disclosure is made in connection with a court proceeding or required
by law, or such information becomes available to the public generally or
through a third party without an accompanying obligation of
confidentiality;
(iii) make such representations and warranties to the Electing Holders
of Registrable Securities registered thereunder and the underwriters, if
any, in form, substance and scope as are customarily made by the Company
to underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Managing Underwriters, if any) in
customary form addressed to each Electing Holder and the underwriters, if
any, covering such matters as are customarily covered in opinions
requested in underwritten offerings and such other matters as may be
reasonably requested by such Electing Holders and underwriters (it being
agreed that the matters to
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<PAGE>
be covered by such opinion or written statement by such counsel delivered
in connection with such opinions shall include in customary form, without
limitation, as of the date of the opinion and as of the effective date of
the Shelf Registration Statement or most recent post-effective amendment
thereto, as the case may be, the absence from such Shelf Registration
Statement and the prospectus included therein, as then amended or
supplemented, including the 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);
(v) obtain "cold comfort" letters and updates thereof from the
independent public accountants of the Company (and, if necessary, any
other independent public accountants of any subsidiary of the Company or
of any business acquired by the Company for which financial statements
and financial data are, or are required to be, included in the Shelf
Registration Statement), addressed to each such Electing Holder of
Registrable Securities registered thereunder and the underwriters, if
any, in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with primary underwritten
offerings;
(vi) deliver such documents and certificates as may be reasonably
requested by any such Electing Holders and the Managing Underwriters, if
any, including those to evidence compliance with Section 3(i) and with
any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company.
The foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of
this Section 3(q) shall be performed at each closing under any underwritten
offering to the extent required thereunder.
(r) The Company shall cause the Common Stock issuable upon conversion
thereof to be listed for quotation on the NYSE or other stock exchange or
trading system on which the Common Stock primarily trades on or prior to
the effective
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<PAGE>
date of any Shelf Registration Statement hereunder.
(s) In the event that any broker-dealer registered under the Exchange Act
shall underwrite any Registrable 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 and the By-Laws of the National
Association of Securities Dealers, Inc. ("NASD")) thereof, whether as an
Electing Holder of such Registrable Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or
otherwise, assist such broker-dealer in complying with the requirements of
such Rules and By-Laws, including, without limitation, by (A) such Rules or
By-Laws, including Schedule E thereto, shall so require, engaging a "qualified
independent underwriter" (as defined in Schedule E) to participate in the
preparation of the Shelf Registration Statement relating to such Registrable
Securities and to exercise usual standards of due diligence in respect
thereto, (B) indemnifying any such qualified independent underwriter to the
extent of the indemnification of under writers provided in Section 5 hereof
and (C) 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 of
Fair Practice of the NASD.
(t) The Company shall use its best efforts to take all other steps
necessary to effect the registration, offering and sale of the Registrable
Securities covered by the Shelf Registration Statement contemplated hereby.
SECTION 4. REGISTRATION EXPENSES. The Company shall bear all fees and
expenses incurred in connection with the performance of its obligations under
Sections 2 and 3 thereof and shall reimburse the Holders for the reasonable
fees and disbursements of one firm of counsel designated by the majority of
Holders to act as counsel for Holders in connection therewith.
SECTION 5. INDEMNIFICATION AND CONTRIBUTION. (a) In connection with any
Shelf Registration Statement, the Company shall indemnify and hold harmless
the Purchaser, each Electing Holder, each underwriter who participates in an
offering of Registrable Securities, each person, if any, who controls any of
such parties within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act and each of their respective directors,
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<PAGE>
officers, employees, trustees and agents (each such person being sometimes
referred to as an "indemnified party"), from and against any and all losses,
claims, damages or liabilities, joint or several, to which such indemnified
party may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Shelf Registration Statement under which
such Registrable Securities are to be registered under the Securities Act, or
any Prospectus contained therein or furnished by the Company to any
indemnified party, or any amendment or supplement thereto, 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 the Company hereby agrees to reimburse such indemnified
party for any legal or other expenses reasonably incurred by them in
connection with investigating or defending or preparing to defend or appearing
as a third party witness in connection with any such loss, claim, damage,
liability or action as such expenses are incurred; 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 an untrue statement
or alleged untrue statement or omission or alleged omission made in such Shelf
Registration Statement or Prospectus in reliance upon and in conformity with
written information furnished to the Company by such indemnified party
expressly for use therein.
(b) Each Electing Holder agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Purchaser, each underwriter who
participates in an offering of Registrable Securities and the other Electing
Holders and each of their respective directors, officers (including each
officer of the Company who signed the Shelf Registration Statement),
employees, trustees and agents and each Person, if any, who controls the
Company, the Purchaser, any under writer or any other Electing Holder within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all loss, liability, claim, damage and expense
whatsoever described in the indemnity contained in Section 5(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Shelf Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Electing Holder expressly for use in the Shelf
Registration Statement (or any amendment thereto) or any
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Prospectus (or any amendment or supplement thereto); PROVIDED, HOWEVER, that,
no such Electing Holder shall be liable for any claims hereunder in excess of
the amount of net proceeds received by such Electing Holder from the sale of
Registrable Securities pursuant to the Shelf Registration Statement.
(c) In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (hereinafter called the indemnified
party) shall promptly notify the person against whom such indemnity may be
sought (hereinafter called the indemnifying party) in writing; however, the
omission to so notify the indemnifying party shall relieve the indemnifying
party from liability only to the extent prejudiced thereby. The indemnifying
party, upon request of the indemnified party, shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others that the
indemnifying party may designate and shall pay the fees and disbursements of
such counsel related to such proceeding. In any such action or proceeding any
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the reasonable fees and expenses of more than
one separate firm (in addition to any local counsel) for all indemnified
parties and all persons, if any, who control such indemnified parties within
the meaning of either Section 15 of the Act or Section 20 of the Exchange Act.
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(d) If the indemnification provided for in this Section 5 is insufficient
or unavailable to an indemnified party in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein,
then each indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities and expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified party or
parties on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law or
if the indemnified party shall have failed to the prejudice of the
indemnifying party to give the notice required by Section 5(c), in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
indemnifying party or parties on the one hand and the indemnified party or
parties on the other in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses, 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 by the Electing Holder or such other indemnified
party, in the other hand, and the parties, relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Company, the Purchaser and the Electing Holders of the
Registrable Securities agree that it would not be just and equitable if
contribution pursuant to this Section 5 were to be determined by pro rata
allocation or by any other method of allocation that does not take into
account the relevant equitable considerations. For purposes of this Section
5(d), each director, officer, employee, trustee, agent and Person, if any, who
controls the Purchaser or an Electing Holder within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Purchaser or such Electing Holder, and each
director, officer, employee, trustee and agent of the Company, and each
Person, if any, who controls the Company within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution
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as the Company. No party shall be liable for contribution with respect to any
action, suit, proceeding or claim settled without its written consent. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(e) Notwithstanding any other provision of this Section 5, in no event
will any (i) Electing Holder be required to undertake liability to any person
under this Section 5 for any amounts in excess of the dollar amount of the
proceeds to be received by such holder from the sale of such holder's
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) pursuant to any Shelf Registration Statement under which
such Registrable Securities are to be registered under the Securities Act and
(ii) underwriter, selling agent or other securities professional be required
to undertake liability to any person hereunder for any amounts in excess of
the discount, commission or other compensation payable to such underwriter,
selling agent or other securities professional with respect to the Registrable
Securities underwritten by it and distributed to the public.
(f) The obligations of the Company under this Section 5 shall be in
addition to any liability which the Company may otherwise have and shall
extend, or not extend, as the case may be, to any Indemnified Person and the
obligations of any Indemnified Person under this Section 5 shall be in
addition to any liability which such Indemnified Person may otherwise have and
shall extend, or not extend, as the case may be, to the Company. The remedies
provided in this Section 5 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to an indemnified party at law or in
equity.
SECTION 6. UNDERWRITTEN OFFERING. The Electing Holders of Registrable
Securities covered by the Shelf Registration Statement who desire to do so may
sell such Registrable Securities in an underwritten offering in accordance
with the conditions set forth below. In any such underwritten offering, the
investment banker or bankers and manager or managers that will administer the
offering will be selected by, and the underwriting arrangements with respect
thereto will be approved by the Electing Holders of a majority of the
Registrable Securities to be included in
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such offering; PROVIDED, HOWEVER, that (i) with respect to the investment
bankers and managers, such investment bankers and managers will be selected by
the Company from a list of nationally recognized firms to be provided by the
Electing Holders and (ii) the Company shall not be obligated to arrange for
more than two underwritten offering during the Effectiveness Period. No
Electing Holder may participate in any underwritten offering contemplated
hereby unless such Electing Holder (a) agrees to sell such Electing Holder's
Registrable Securities in accordance with any approved underwriting
arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents required under the terms of such approved underwriting
arrangements. Except as otherwise set forth herein, the Electing Holders of
Registrable Securities covered by the Shelf Registration Statement selling
under an underwritten offering as contemplated hereby will pay such expenses
as are ordinarily and customarily paid in connection with underwritten
secondary offerings.
SECTION 7. MISCELLANEOUS. (a) OTHER REGISTRATION RIGHTS. From the date of
this Agreement, the Company may grant registration rights that would permit
any Person that is a third party the right to piggy-back on any Shelf
Registration Statement; PROVIDED that if the Managing Underwriter, if any, of
such offering delivers an opinion to the Electing Holders that the total
amount of securities which they and the holders of such piggy-back rights
intend to include in any Shelf Registration Statement is so large as to
materially adversely affect the success of such offering (including the price
at which such securities can be sold), then only the amount, the number or
kind of securities to be offered for the account of holders of such piggy-back
rights granted after the date of this agreement will be reduced to the extent
necessary to reduce the total amount of securities to be included in such
offering to the amount, number or kind recommended by the Managing Underwriter
prior to any reduction in the amount of Registrable Securities to be included.
(b) AMENDMENTS AND WAIVERS. This Agreement, including this Section 7(b),
may be amended, and waivers or consents to departures from the provisions
hereof may be given, only upon the written consent of the Purchaser or by a
written instrument duly executed by the Company and the holders of a majority
in aggregate principal amount of
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Registrable Securities then outstanding. Each holder of Registrable Securities
outstanding at the time of any such amendment, waiver or consent or thereafter
shall be bound by any amendment, waiver or consent effected pursuant to this
Section 7(b), whether or not any notice, writing or marking indicating such
amendment, waiver or consent appears on the Registrable Securities or is
delivered to such holder.
(c) NOTICES. All notices and other communications provided for or
permitted hereunder shall be given as provided in the Indenture.
(d) PARTIES IN INTEREST. The parties to this Agreement intend that all
holders of Registrable Securities shall be entitled to receive the benefits of
this Agreement and that any Electing Holder shall be bound by the terms and
provisions of this Agreement by reason of such election with respect to the
Registrable Securities which are included in a Shelf Registration Statement.
All the terms and provisions of this Agreement shall be binding upon, shall
inure to the benefit of and shall be enforceable by the respective successors
and assigns of the parties hereto and any holder from time to time of the
Registrable Securities to the aforesaid extent. In the event that any
transferee of any holder of Registrable Securities shall acquire Registrable
Securities, in any manner, whether by gift, bequest, purchase, operation of
law or otherwise, such transferee shall, without any further writing or action
of any kind, be entitled to receive the benefits of and, if an Electing
Holder, be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement to the aforesaid extent.
(e) 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.
(f) HEADINGS. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. This agreement shall be governed by and construed in
accordance with the laws of the State of New York.
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(h) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and
of the remaining provisions hereof shall not be in any way impaired or
affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) SURVIVAL. The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made pursuant
hereto shall remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any
Electing Holder, any director, officer or partner of such holder, any agent or
underwriter, any director, officer or partner of such agent or underwriter, or
any controlling person of any of the foregoing, and shall survive the transfer
and registration of the Registrable Securities of such holder.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
COEUR D'ALENE MINES CORPORATION,
By___________________________________
Name:
Title:
The foregoing Registration Rights Agreement is hereby confirmed and accepted
as of the date first above written:
LAZARD FRERES & CO. LLC,
By___________________________________
(Lazard Freres & Co. LLC)
21
EXHIBIT 99(a)
[COEUR D'ALENE MINES CORPORATION PRESS RELEASE]
Coeur d'Alene Mines Corporation Sells $125,000,000
of 7 1/4% Convertible Subordinated Debentures Due 2005
Coeur d'Alene, Idaho . . .October 8, 1997 . . . Coeur d'Alene Mines
Corporation (NYSE: CDE) announced today the sale of $125,000,000 principal
amount of Coeur d'Alene Mines Corporation 7 1/4% Convertible Subordinated
Debentures Due 2005. The Debentures are convertible into Coeur d'Alene Mines
Corporation common stock at a conversion price of $17.45 per share. The
Debentures have not been registered under the Securities Act, are being
offered only to "qualified institutional buyers" in reliance upon Rule 144A
and in offshore transactions in accordance with Regulation S under the
Securities Act and may not be offered or sold in the United States absent
registration under or the availability of an exemption from the registration
requirements of the Securities Act.
Coeur d'Alene Mines Corporation is an international silver and gold
producer engaged in the development and operation of silver and gold mining
properties located in the western United States, Western Australia, Chile and
New Zealand. Coeur also engages in significant silver and gold exploration
activities on properties located in those countries as well as in Guyana and
Mexico.
EXHIBIT 99(b)
[COEUR D'ALENE MINES CORPORATION PRESS RELEASE]
COEUR D'ALENE MINES CORPORATION ANNOUNCES COMPLETION OF SALE OF 7 1/4%
CONVERTIBLE SUBORDINATED DEBENTURES DUE 2005
Coeur d'Alene, Idaho . . . October 15, 1997 . . . Coeur d'Alene Mines
Corporation (NYSE: CDE) today announced completion of the sale of $143,750,000
principal amount of Coeur d'Alene Mines Corporation's 7 1/4% Convertible
Subordinated Debentures due 2005, which includes $18,750,000 principal amount
sold upon the exercise of an over-allotment option. The Debentures are
convertible into Coeur d'Alene Mines Corporation common stock at a conversion
price of $17.45 per share. The offering of Debentures was not registered under
the Securities Act and the Debentures were sold only to "qualified
institutional buyers" in reliance upon Rule 144A and in offshore transactions
in accordance with Regulation S under the Securities Act and may not be
offered or sold in the United States absent registration under, or the
availability of an exemption from the registration requirements of, the
Securities Act.
Coeur d'Alene Mines Corporation is an international silver and gold producer
engaged in the development and operation of silver and gold mining properties
located in the western United States, Western Australia, Chile and New
Zealand. Coeur also engages in significant silver and gold expiration
activities on properties located in those countries as well as in Guyana and
Mexico.
