REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of November 19, 1999 by
and
between Chief Consolidated Mining Company, an Arizona corporation (the
"Company"), and Dimeling Schreiber & Park, a Pennsylvania general
partnership
("Investor").
R E C I T A L S:
WHEREAS, the Company and Investor are parties to that certain
Stock
Purchase Agreement, dated as of November 19, 1999 (the "Stock Purchase
Agreement"), pursuant to which the Company has agreed to sell to
Investor, and
Investor has agreed to purchase, certain amounts of Convertible Common
Stock par
value $.50 per share ("Convertible Common Stock") of the Company;
WHEREAS, the Company has issued a warrant to the Investor,
dated as of
November 19, 1999, which warrant is exercisable for the shares of
Convertible
Common Stock specified therein ("Warrant");
WHEREAS, the Company's Convertible Common Stock is convertible
into the
Company's Common Stock par value $.50 per share ("Common Stock") on a
share for
share basis; and
WHEREAS, the Company wishes to grant to Investor registration
rights in
its Common Stock, exercisable upon Investor's conversion of its
Convertible
Common Stock.
NOW, THEREFORE, for and in consideration of the foregoing, the
mutual
covenants and agreements contained herein and for other good and
valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the
parties hereto agree as follows:
Section 1. Definitions and Usage.
A. Definitions. The terms defined in this Section,
wherever
used in this Agreement, shall, unless the context otherwise requires,
have the
respective meanings hereinafter specified.
"Affiliate" shall be defined by reference to the Stock Purchase
Agreement definition of "Affiliate".
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"Agreement" shall mean this Registration Rights Agreement.
"Commission" shall mean the United States Securities and
Exchange
Commission.
"Company" shall mean Chief Consolidated Mining Company, an
Arizona
corporation, and any successor corporation by merger, consolidation or
otherwise
and any parent corporation resulting from the merger or consolidation of
the
Company with or into a subsidiary of another corporation.
"Demand Registration Request" shall mean a written notice from
Investor
requesting that the Company file a Registration Statement with respect
to a
Public Offering pursuant to Section 2.A in which Investor advises the
Company as
to the number of shares of Common Stock that Investor wishes to include
in the
applicable Registration and in which Investor agrees to (i) the
specified method
of distribution, (ii), in the case of an underwritten Public Offering,
the
designated managing underwriter, and (iii) agrees to provide to the
Company all
such information as may be required by the Company pursuant to Section 6
herein.
"Effective Period" shall mean such period as shall be required
under
the provisions of the Securities Act and the Securities Act Rules for
delivery
of a prospectus meeting the requirements of Section 10(a) of the
Securities Act
to any Person purchasing Common Stock in connection with a Public
Offering;
provided, however, that such period shall not include any delivery
requirement
with respect to the distribution by an underwriter of its unsold
allotment
relating to an underwritten Public Offering.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as
amended, as the same shall be in effect at the date of any determination
to be
made hereunder.
"Exchange Act Rules" shall mean the rules and regulations
promulgated
by the Commission under the Exchange Act, as the same shall be in effect
at the
date of any determination to be made hereunder.
"Investor" shall include Dimeling, Schreiber & Park, a
Pennsylvania
general partnership ("DSP") or any assignee of shares of Convertible
Common
Stock or Common Stock theretofore held by DSP and permitted under
Section 16(a)
hereof (other than any assignee who acquires such shares of Common Stock
pursuant to a Public Offering); provided, however, that any such
assignee has
agreed to be bound by the provisions of this Agreement in accordance
with
Section 16 herein.
"Notice of Intent to File" shall mean written notice from the
Company
to the Investor of the Company's intent to file a Registration Statement
in
accordance with Section 2 or 3 herein.
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"Person" shall mean an individual, a corporation, a
partnership, a
trust, an unincorporated organization or a government or any agency or
political
subdivision thereof.
"Piggy Back Registration Request" shall mean a written notice
given by
Investor pursuant to the provisions of Section 3.B herein, in which
Investor
advises the Company as to the number of shares of Common Stock that
Investor
wishes to include in the applicable Registration and in which Investor
agrees to
(i) the specified method of distribution, (ii) in the case of an
underwritten
Public Offering, the designated managing underwriter, and (iii) provides
to the
Company all such information as may be required by the Company pursuant
to
Section 6 herein.
"Registrable Shares" shall mean shares of Common Stock owned
of record
by the Investor, into which (i) shares of Convertible Common Stock owned
of
record by the Investor or (ii) shares of Convertible Common Stock
underlying the
Warrant owned by the Investor are convertible, and as to which such
Investor has
the right to request Registration pursuant to the provisions of Sections
2 or 3.
"Registration" shall mean the registration under the
registration
provisions of the Securities Act of the offering, sale and delivery of
shares of
Common Stock.
"Registration Expenses" shall mean the expenses associated with
the
preparation and filing of any registration statement pursuant to Section
2 or 3
herein and any sale covered thereby (including the reasonable fees and
expenses
of legal counsel to Investor, fees related to blue sky qualifications
and filing
fees in respect of the National Association of Securities Dealers,
Inc.), but
excluding underwriting discounts or commissions in respect of shares of
Common
Stock to be sold by Investor.
"Registration Period" shall mean the period of time from the
decision
of the Company to prepare and file a Registration Statement to and
including the
effective date of such Registration Statement.
"Registration Statement" shall mean a registration statement
filed on
Form S-1, S-2, S-3, SB-1, SB-2, or 10-SB (or any successor form) under
the
registration provisions of the Securities Act and the Securities Act
Rules.
"Securities Act" shall mean the Securities Act of 1933, as
amended, as
the same shall be in effect at the date of any determination to be made
hereunder.
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"Securities Act Rules" shall mean the rules and regulations
promulgated
by the Commission pursuant to the Securities Act, as the same shall be
in effect
at the date of any determination to be made hereunder.
B. Rules of Construction. Unless the context otherwise
requires, as used in this Agreement: (a) a term has the meaning ascribed
to it;
(b) "or" is not exclusive; (c) "including" means "including without
limitation;"
(d) words in the singular include the plural; (e) words in the plural
include
the singular; (f) words applicable to one gender shall be construed to
apply to
each gender; (g) the terms "hereof," "herein," "hereby," "hereto" and
derivative
or similar words refer to this entire Agreement; and (h) the term
"Section"
shall refer to the specified Section of this Agreement.
Section 2. Demand Registration Rights.
A. Demand Registration Request. At any time, but not more than
a total
of three times during the period the Investor holds Registrable Shares
or
Convertible Common Stock or the Warrant, the Investor has the right, to
deliver
a Demand Registration Request to the Company. .
B. Required Registration Obligation. Upon receipt of a Demand
Registration Request made pursuant to Section 2.A, the Company shall,
subject to
the provisions of Section 4, deliver to Investor a Notice of Intent to
File and
prepare as promptly as practicable and file a Registration Statement
with
respect to the distribution in accordance with the applicable method of
distribution of the Registrable Shares to be included therein, and the
Company
shall use its best efforts to cause the Registration Statement to become
effective under the Securities Act in accordance with the Securities Act
Rules.
Section 3. "Piggy Back" Registration Rights.
A. Notice of Intent to File. If the Company at any time
proposes to
file a Registration Statement (other than for a distribution for the
account of
Investor) under the Securities Act relating to an underwritten Public
Offering
of Common Stock that would permit the inclusion therein of shares of
Common
Stock to be distributed in accordance with the method of distribution
contemplated by such Registration Statement, the Company shall give to
the
Investor a Notice of Intent to File promptly after a determination has
been made
by the Company to prepare and file such Registration Statement, but in
any event
not less than 90 days before the filing with the Commission of such
Registration
Statement, which notice shall set forth the intended method of
distribution
(including the name of the managing underwriter) of and the amount and
class of
the securities proposed to be registered. The Notice of Intent to File
shall
include an offer to include in such filing, subject to the other
provisions of
this Agreement, such amount of Registrable Shares as an Investor may
request.
B. Piggy Back Registration Request. If an Investor wishes to
have
Registrable Shares registered pursuant to this Section, it shall advise
the
Company by giving a Piggy Back
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Registration Request within 60 days after the date of receipt of the
Notice of
Intent to File setting forth the amount of Registrable Shares for which
Registration is requested.
C. Registration Obligation. Subject to the provisions of
Section 4, the
Company shall include all Registrable Shares specified in the Piggy Back
Registration Request.
D. Underwriting Agreement. Any obligation of the Company to
include
Registrable Shares of Investor in a Registration Statement prepared and
filed
pursuant to this Section shall be conditioned upon the agreement of an
Investor
to enter into an underwriting agreement with the Company, other security
holders, if any, and the managing underwriter of the distribution, if
applicable.
Section 4. Conditions to Registration Obligations.
A. Suspension or Termination of Obligations. The Company's
obligations
herein to prepare and file a Registration Statement and to seek its
effectiveness shall be subject to the following provisions:
i. The Company shall be required to file no more than
an
aggregate of three (3) Registration Statements pursuant to
Demand
Registration Requests granted in Section 2 hereof.
ii. The Company's obligations to prepare, file and
seek
effectiveness of a Registration Statement in response to a
Demand
Registration Request under Section 2 or Piggy Back Registration
Request
under Section 3 shall be suspended:
(a) in any case, during the period from the
time that
it receives a Demand Registration Request from
Investor under
Section 2 or it gives a Notice of Intent to File under
Section
3, until 90 days (or such shorter period as to which
the
managing underwriter, if any, of the distribution to
which the
such Registration Statement relates shall consent in
writing)
have lapsed following the effective date of such
Registration
Statement under the Securities Act; provided, however,
that
(x) such Notice of Intent to File is given prior to
the time
of receipt by the Company of a Demand Registration
Request by
the Investor and (y) that the Company shall use its
best
efforts to cause such Registration Statement to be
declared
effective as promptly as practicable; and provided
further
that the obligation to file a Registration Statement
on behalf
of the Investor shall be reinstated if the Company
does not
file such Registration Statement within 30 days after
giving
the Notice of Intent to File or 60 days after receipt
of a
Demand Registration Request;
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(b) in any case, if at the time of receipt by
the
Company of a Demand Registration Request, the Company
has
material inside information as to which it believes it
has a
valid business purpose in refraining from disclosing
publicly
for the time being and that current public disclosure
of such
information would have a material adverse effect on
the
Company, for a period commencing with the date of
receipt of
the Demand Registration Request and ending on the
earlier of
(x) 60 days after such receipt of the Registration
Request;
(y) the public announcement of such material inside
information; or (z) the date on which the Company
gives the
Investor who issued the Demand Registration Request a
notice
that suspension of its obligation is no longer
required;
provided, however, that the same material inside
information
shall not constitute a basis for continuation of this
suspension period.
B. Inclusion of Registerable Shares. A Registration
Statement
filed pursuant to a Demand Registration Request herein shall first
include all
Registrable Shares requested to be included by the Investor and, only
after such
inclusion, may include Common Stock being sold for the account of the
Company or
any other security holders. Any Common Stock to be offered on behalf of
the
Company or such other security holders will be included in such
Registration
Statement only to the extent that, in the reasonable opinion of the
managing
underwriter for an Underwritten Public Offering of Registrable Shares on
behalf
of Investor, such inclusion will not materially adversely affect the
distribution of Registrable Shares on behalf of an Investor.
C. Reduction of Piggy Back Shares. If in the event of
a Piggy
Back Registration Request, the managing underwriter of the proposed
distribution
shall advise the Company in writing that, in the reasonable opinion of
such
managing underwriter, the inclusion in the Registration Statement of the
aggregate number of shares of Common Stock requested by Investor to be
included
in the distribution would materially adversely affect such distribution,
then
the Company shall so advise the Investor and the number of such shares
of Common
Stock included in the Registration Statement shall be reduced to the
number
acceptable to such managing underwriter.
D. Right to Select Underwriter. The Investor shall
have the
right to select an underwriter for an underwritten public offering of
Registrable Shares made in response to a Demand Registration Request.
E. Right to Withdraw. For purposes of this Section, if
a
requested Registration Statement is filed, and the Company otherwise
complies
with its obligations hereunder, and
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i. the Registration Statement is withdrawn with the
consent of
the Investor as a result of a delay in the offering requested
by the
Company, then no requested Registration Statement shall be
deemed to
have been filed; or
ii. the Investor ceases to prosecute the Registration
actively
and in good faith for a period of sixty days or more, the
Company shall
have the right to withdraw the Registration Statement without
the
consent of the Investor and the requested Registration
Statement shall
be deemed to have been filed.
Section 5. Registration Procedures. If the Company is required
by the
provisions of Section 2 or 3 to effect the Registration of any of the
Registrable Shares, the Company shall, as expeditiously as possible:
A. Prepare and file with the Commission a Registration
Statement with
respect to such shares of Common Stock and use its best efforts to cause
such
Registration Statement to become and remain effective, and to ensure
compliance
of the prospectus contained therein with Section 10(a) of the Securities
Act for
the Effective Period.
B. Prepare and file with the Commission during the Registration
Period
such amendments and supplements to such Registration Statement and the
prospectus used in connection therewith as may be necessary to permit
such
Registration Statement to become effective in accordance with the
Securities Act
and the Securities Act Rules and to ensure that such Registration
Statement and
the prospectus used in connection therewith comply with the disclosure
standards
of Sections 10 and 11 of the Securities Act and comply with the
standards of
Section 10(b) of the Exchange Act in each case during the Effective
Period.
C. Furnish Investor (i) such number of copies of such
Registration
Statement and of each amendment and supplement thereto (in each case
including
all exhibits), such number of copies of the prospectus included in such
Registration Statement (including each preliminary prospectus, summary
prospectus and prospectus supplement), in conformity with the
requirements of
the Securities Act, and such other documents, as Investor may reasonably
require
in order to facilitate the offering, sale and delivery or other
disposition of
the Registrable Shares owned by Investor and (ii), during the
Registration
Period and the Effective Period, copies of any written correspondence or
memoranda relating to oral communications in each case with the
Commission and
copies of any request by the Commission for any amendment of or
supplement to
the Registration Statement or the prospectus included therein or for
additional
information.
D. Use its best efforts to register or qualify the Common Stock
covered
by such Registration Statement under the securities or blue sky laws of
such
jurisdictions as the managing underwriter of such distribution may
reasonably
request (excluding, however, any jurisdiction in which the filing would
subject
the Company to additional tax liability and any
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jurisdiction in which the Company would thereby be required to execute a
general
consent to service of process) and use all reasonable efforts to do such
other
acts and things as may be required to enable Investor to consummate the
public
sale or other disposition in such jurisdictions of the Registrable
Shares owned
by Investor.
E. Make available to Investor an earnings statement covering
the period
of at least 12 months, but not more than 18 months, beginning with the
first
month after the effective date of the Registration Statement, which
earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act.
F. Notify Investor immediately if the Company shall become
aware at any
time during the Effective Period that the prospectus included in the
Registration Statement, as such prospectus may be amended or
supplemented,
includes an untrue statement of a material fact or omits to state any
material
fact required to be stated therein or necessary in order to make the
statements
therein not misleading in light of the circumstances then existing, and
at the
request of the Investor to prepare promptly and to furnish to Investor
such
number of copies of an amended or supplemental prospectus as may be
necessary so
that, as thereafter delivered to the purchasers of such Registrable
Shares, such
prospectus shall not include an untrue statement of a material fact or
omit to
state a material fact required to be stated therein or necessary in
order to
make the statements therein not misleading in the light of the
circumstances
then existing.
G. Enter into such agreements (including an underwriting
agreement) in
customary form and containing customary provisions relating to legal
opinions
and accountants' letters, representations and warranties and mutual
indemnification and contribution between the Company and the
underwriters for
the Investor and use all reasonable efforts to take such other actions
as
Investor may reasonably request in order to expedite or facilitate the
disposition of such Registrable Shares.
H. Make available for inspection by Investor, by any
underwriter
participating in any distribution to be effected pursuant to such
Registration
Statement and by any attorney, accountant or other agent retained by the
Investor or any such underwriter all pertinent financial and other
records,
pertinent corporate documents and properties of the Company and cause
all of the
Company's officers, directors and employees to supply all such
information
requested by Investor, such underwriter, attorney, accountant or agent,
as is
reasonably needed in connection with such Registration.
Section 6. Expenses; Limitations on Registration. The Registration
Expenses
relating to any Registration effected by the Company pursuant to this
Agreement
shall be for the account of the Company.
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For purposes of this Section, the Company shall be obligated to
pay the
fees and expenses of only one law firm representing the Investor.
Section 7. Investor Information. Investor shall provide all
information
reasonably requested by the Company for inclusion in any Registration
Statement
to be filed hereunder. The actual provision of such information shall be
a
condition precedent to the obligation of the Company to take any action
pursuant
to this Agreement in respect of the Registration of Registrable Shares
of an
Investor.
Section 8. Indemnification.
A. In connection with the Registration of any Registrable
Shares under
the Securities Act pursuant to this Agreement, the Company agrees to
indemnify
and hold harmless Investor, its partners, directors, officers and
employees, and
each other Person, if any, who controls Investor within the meaning of
Section
15 of the Securities Act, against any losses, claims, damages or
liabilities,
joint or several, to which such Investor or any such partner, director,
officer,
employee or controlling Person may become subject under the Securities
Act or
any other statute or at common law, insofar as such losses, claims,
damages or
liabilities (or actions in respect thereof) arise out of or are based
upon (i)
any untrue statement or any alleged untrue statement of a material fact
contained in the Registration Statement or the prospectus included
therein at
the time the Registration Statement is declared effective or any
omission or
alleged omission of a material fact required to be stated therein or
necessary
in order to make the statements therein not misleading or (ii) any
untrue
statement of a material fact or alleged untrue statement of a material
fact
contained in the Registration Statement, any preliminary prospectus, the
prospectus included therein or any amendment or supplement thereto or
any
omission or alleged omission of a material fact required to be stated
therein or
necessary in order to make the statements concerning the Company
therein, in the
light of the circumstances under which they were made, not misleading
and shall
reimburse Investor and each such partner, director, officer, employee
and
controlling Person for any legal or other expenses reasonably incurred
by an
Investor or such partner, director, officer employee or controlling
Person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company shall not be
liable in
any such case to the extent that any such loss, claim, damage or
liability
arises out of or is based upon any untrue statement or alleged untrue
statement
or omission or alleged omission made in such Registration Statement,
preliminary
prospectus, prospectus, or amendment or supplement in reliance upon and
in
conformity with written information furnished by or on behalf of
Investor to the
Company expressly for use therein; and provided, further, that the
Company shall
not be liable in any such case to the extent that any such loss, claim,
damage,
liability or expense arises out of or is based upon an untrue statement
or
alleged untrue statement or omission or alleged omission in any
preliminary
prospectus if such untrue statement or alleged untrue statement or
omission or
alleged omission was corrected in the final prospectus included in the
Registration Statement at the time it became
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effective and Investor, in the case of a Distribution Public Offering,
or the
managing underwriter, in the case of an Underwritten Public Offering,
failed to
provide the final prospectus as required by the Securities Act and the
Securities Act Rules. Such indemnity shall remain in full force and
effect
regardless of any investigation made by or on behalf of Investor or any
such
partner, director, officer, employee or controlling Person, and shall
survive
the transfer of such securities by Investor.
B. Investor agrees to indemnify and hold harmless the Company,
its
directors, officers and employees, each other Person, if any, who
controls the
Company against any losses, claims, damages or liabilities, joint or
several, to
which the Company, any such director, officer or employee, any such
controlling
Person may become subject under the Securities Act or any other statute
or at
common law, insofar as such losses, claims, damages or liabilities (or
actions
in respect thereof) arise out of or are based upon (i) any untrue
statement or
any alleged untrue statement of a material fact contained in the
Registration
Statement or the prospectus included therein at the time the
Registration
Statement is declared effective or any omission or alleged omission of a
material fact required to be stated therein or necessary in order to
make the
statements therein not misleading or (ii) any untrue statement of a
material
fact or alleged untrue statement of a material fact contained in the
Registration Statement, any preliminary prospectus, the prospectus
included
therein or any amendment or supplement thereto or any omission or
alleged
omission of a material fact required to be stated therein or necessary
in order
to make the statements concerning the Company therein, in the light of
the
circumstances under which they were made, not misleading, in each case
to the
extent, but only to the extent, that such alleged untrue statement or
alleged
omission was made in such Registration Statement, preliminary
prospectus,
prospectus, amendment or supplement in reliance upon and in conformity
with
written information furnished by or on behalf of Investor to the Company
expressly for use therein, and shall reimburse the Company or such
director,
officer, employee or other Person for any legal or any other expenses
reasonably
incurred in connection with investigating or defending any such loss,
claim,
damage, liability or action.
C. Promptly after receipt by an indemnified party hereunder of
written
notice of the commencement of any action or proceeding involving a claim
referred to in Subsections (A) and (B) of this Section, such indemnified
party
will, if a claim in respect thereof is to be made against an
indemnifying party,
give written notice to the latter of the commencement of such action;
provided,
that the failure of any indemnified party to give notice as provided
herein
shall not relieve the indemnifying party of its obligation under this
Subsection
C to the extent the indemnifying party is not materially prejudiced by
such
failure. In case any such action is brought against an indemnified
party, the
indemnified party shall permit the indemnifying party to assume the
defense of
such action or proceeding, provided that counsel for the indemnifying
party, who
shall conduct the defense of such action or proceeding, shall be
approved by the
indemnified party (whose approval shall not be unreasonably withheld)
and the
indemnified party may participate in such defense (in which case, such
participation shall be at such
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indemnified party's expense, unless in such indemnified party's
reasonable
judgment a conflict of interest between such indemnified party and the
indemnifying party shall exist in respect of such claim, in which event
the
indemnifying party shall pay the reasonable fees and expense of separate
counsel
for the indemnified party). No indemnifying party shall consent to entry
of any
judgment or enter into any settlement that does not include as an
unconditional
term thereof the giving by the claimant or plaintiff to such indemnified
party
of a release from all liability in respect to such claim or litigation.
The
indemnifying party shall not, in connection with any proceeding or
related
proceedings in the same jurisdiction, be liable for the fees and
expenses of
more than one separate firm for all indemnified parties. The
indemnifying party
shall not be liable for any settlement of any proceeding effected
without its
written consent.
D. Indemnification similar to that specified in the preceding
Subsections of this Section shall be given by the Company and Investor
(with
such modifications as shall be appropriate) with respect to liability
related to
any required registration or other qualification of Registrable Shares
under any
Federal or state law or regulation of governmental authority other than
the
Securities Act.
E. If the indemnification provided for in this Section is
unavailable
or insufficient to hold harmless an indemnified party under Subsection
(A) or
(B) above, then the indemnifying party shall contribute to the amount
paid or
payable by such indemnified party as a result of the losses, claims,
damages or
liabilities referred to in Subsection (A) or (B) above, in such
proportion as is
appropriate to reflect the relative fault of the Company, on the one
hand, and
an Investor, on the other, in connection with the statements or
omissions which
resulted in such losses, claims, damages or liabilities, as well as any
other
relevant equity considerations. The relative fault shall be determined
by
reference to, among other things, whether the untrue or alleged untrue
statement
of a material fact or the omission or alleged omission to state a
material fact
relates to information supplied by the Company or Investor and the
parties'
relative intent, knowledge, access to information and opportunity to
correct or
prevent such untrue statement or omission. The Company and Investor
agree that
it would not be just and equitable if contributions pursuant to this
Subsection
(E) were to be determined by pro rata allocation or by any other method
of
allocation which does not take account of the equitable considerations
referred
to in the first sentence of this Subsection (E). The amount paid by an
indemnified party as a result of the losses, claims, damages or
liabilities
referred to in the first sentence of this Subsection (E) shall be deemed
to
include any legal or other expenses reasonably incurred by such
indemnified
party in connection with investigating or defending any action or claim
(which
shall be limited as provided in Subsection (C) above if the indemnifying
party
has assumed the defense of any such action in accordance with the
provisions
thereof) which is the subject of this Subsection (E). Notwithstanding
the
provisions of this Subsection (E), in respect of any loss, claim, damage
or
liability based upon any untrue or alleged untrue statement of a
material fact
or omission or alleged omission to state a material fact which relates
to
information other than information supplied by Investor, Investor shall
not be
required to contribute any amount in
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excess of the amount by which the total price at which the Registrable
Shares
offered by it and distributed to the public exceeds the amount of any
damages
which an Investor has otherwise been required to pay by reason of such
untrue or
alleged untrue statement or omission or alleged omission. No Person
guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who
was not
guilty of such fraudulent misrepresentation. Promptly after receipt by
an
indemnified party under this Subsection (E) of notice of the
commencement of any
action against such party in respect of which a claim for contribution
may be
made against an indemnifying party under this Subsection (E), such
indemnified
party shall notify the indemnifying party in writing of the commencement
thereof
if the notice specified in Subsection (C) above has not been given with
respect
to such action; but the omission so to notify the indemnifying party
shall not
relieve it from any liability which it may have to any indemnified party
under
this Subsection (E) to the extent such omission is not prejudicial.
Section 9. Public Availability of Information. The Company
shall comply
with all public information reporting requirements of the Commission, to
the
extent required from time to time to enable Investor to sell Registrable
Shares
without Registration under the Securities Act within the limitation of
the
exemptions provided by (i) Rule 144 under the Securities Act, as such
Rule may
be amended from time to time, or (ii) any similar rule or regulation
hereafter
adopted by the Commission. Upon the request of Investor, the Company
will
deliver to Investor a written statement as to whether it has complied
with such
requirements.
Section 10. Supplying Information. The Company shall cooperate
with
Investor in supplying such information as may be necessary for Investor
to
complete and file any information reporting forms presently or hereafter
required by the Commission as a condition to the availability of an
exemption
from the Securities Act for the sale of any Registrable Shares.
Section 11. Specific Performance. Each party hereto
acknowledges and
agrees that each other party hereto would be irreparably harmed and
would have
no adequate remedy of law if any of the provisions of this Agreement
were not
performed in accordance with their specific terms or were otherwise
breached.
Accordingly, it is agreed that, in addition to any other remedies by law
or in
equity which may be available, the parties hereto shall be entitled to
obtain
preliminary and permanent injunctive relief with respect to any breach
or
threatened breach of, or otherwise obtain specific performance of the
covenants
and other agreements contained in this Agreement.
Section 12. Representations and Warranties of the Company. The
Company
represents and warrants to Investor that, as of the date of this
Agreement, (a)
the Company is a corporation duly organized, validly existing and in
good
standing under the laws of the State of Arizona and has the corporate
power and
authority to enter into this Agreement and to carry out its obligations
hereunder, (b) the execution and delivery of this Agreement by the
Company and
13
the consummation by the Company of the transactions contemplated hereby
have
been duly authorized by all necessary corporate action on the part of
the
Company and no other corporate proceedings on the part of the Company
are
necessary to authorize this Agreement or any of the transactions
contemplated
hereby, and (c) this Agreement has been duly executed and delivered by
the
Company and constitutes a valid and binding obligation of the Company,
is
enforceable against the Company in accordance with its terms, subject to
applicable bankruptcy, reorganization, insolvency, moratorium,
fraudulent
conveyance and similar laws affecting creditors' rights generally from
time to
time and to general principles of equity, and except as the
enforceability
thereof may be limited by considerations of public policy.
Section 13. Representations and Warranties of Investor.
Investor
represents and warrants to the Company that, as of the date of this
Agreement,
(a) it is a general partnership duly organized, validly existing and in
good
standing under the laws of the Commonwealth of Pennsylvania and has the
organizational power and authority to enter into this Agreement and to
carry out
its obligations hereunder, (b) the execution and delivery of this
Agreement by
Investor and the consummation by Investor of the transactions
contemplated
hereby have been duly authorized by all necessary organizational action
on the
part of Investor and no other organizational proceedings on the part of
Investor
are necessary to authorize this Agreement or any of the transactions
contemplated hereby, and (c) this Agreement has been duly executed and
delivered
by Investor and constitutes a valid and binding obligation of Investor
and,
assuming that this Agreement constitutes a valid and binding obligation
of the
Company, is enforceable against Investor in accordance with its terms,
subject
to applicable bankruptcy, reorganization, insolvency, moratorium,
fraudulent
conveyance and similar laws affecting creditors' rights generally from
time to
time and to general principles of equity, and except as the
enforceability
thereof may be limited by considerations of public policy.
Section 14. Expiration. This Agreement and the rights,
benefits, duties
and obligations hereunder of the parties hereto and their successors and
permitted assigns shall expire and be of no further force or effect on
the date
Investor no longer holds any Registrable Shares.
Section 15. Notices. All notices and other communications
hereunder
shall be in writing and shall be deemed given if delivered personally or
transmitted by telex, telegram or facsimile transmission or mailed by
registered
or certified mail (return receipt requested) to the parties at the
following
addresses (or at such other address for a party as shall be specified by
like
notice):
(a) if to the Company, to:
Chief Consolidated Mining Company
Executive Offices
500 Fifth Avenue, Suite 1021
14
New York, New York 10010-1099
Attention: Leonard Weitz
Facsimile: (212) 354-4044
with a copy to:
Howard F. Weitz, P.C.
51 East 42nd Street
New York, NY 10017
Attention: Howard F. Weitz, Esq.
Facsimile No.: (212) 661-4314
(b) if to Investor, to:
Dimeling, Schreiber & Park
1629 Locust Street
Philadelphia, PA 19103
Attention: Richard R. Schreiber
Facsimile No.: (215) 546-9160
with a copy to:
Reed Smith Shaw & McClay LLP
2500 One Liberty Place
Philadelphia, PA 19103
Attention: Lori L. Lasher, Esq.
Facsimile No.: (215) 851-1420
Section 16. Benefit and Assignment.
(a) The terms and conditions of this Agreement shall
inure to
the benefit of and be binding on the parties hereto and their
respective successors and permitted assigns; provided, however,
that,
except as otherwise provided in this Section 16, this Agreement
shall
not be assignable by any party hereto except by operation of
law or
with the prior express written consent of the other parties
hereto.
Nothing in this Agreement, express or implied, is intended to
confer
upon any party, other than the parties hereto, their respective
successors and permitted assigns, any rights, remedies,
obligations or
liabilities under or by reason of this Agreement. A permitted
assignee
of Investor is an Affiliate of Investor or any partner of
Investor or
its Affiliates; or an assignee to which the Company has
consented,
which consent shall not be unreasonably withheld and which
15
shall be deemed granted if the Company has not refused in
writing to
consent within fifteen (15) days of receipt of Investor's
notice to the
Company of a proposed assignment.
(b) If Investor shall transfer and assign shares of
Common
Stock to any Person in accordance with Section 16(a) otherwise
than in
Public Offering, Investor (or any Person who shall be a
transferee or
assignee pursuant to subsection (a)), as the case may be, may
assign
such portion of its rights and
