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