-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UdxPrNy//IuxkbP5yve3P6VGyci0Pk3AtjWlWSoAhKbaGlvRoRDNC1BeyquHtlQ/ 6TsX9bMRKX1yCrrYyGzAbQ== 0000904456-97-000163.txt : 19971017 0000904456-97-000163.hdr.sgml : 19971017 ACCESSION NUMBER: 0000904456-97-000163 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 19971015 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19971016 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: COEUR D ALENE MINES CORP CENTRAL INDEX KEY: 0000215466 STANDARD INDUSTRIAL CLASSIFICATION: GOLD & SILVER ORES [1040] IRS NUMBER: 820109423 STATE OF INCORPORATION: ID FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-08641 FILM NUMBER: 97696515 BUSINESS ADDRESS: STREET 1: 400 COEUR D ALENE MINES BLDG STREET 2: 505 FRONT AVE CITY: COEUR D ALENE STATE: ID ZIP: 83814 BUSINESS PHONE: 2086673511 MAIL ADDRESS: STREET 1: 400 COEUR D ALENE MINES BLDG STREET 2: 505 FRONT AVE CITY: COEUR D'ALENE STATE: ID ZIP: 83814 8-K 1 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 -------------------------------------------------------------------------- (Exact name of registrant as specified on its charter) IDAHO 1-8641 82-0109423 ------------------------------- ------------ ----------------- (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 ---------------------------------- -------------------------------- (Address of principal executive (Zip Code) offices) Registrant's telephone number, including area code: (208) 667-3511 -------------------------------------------------------------------------- Not Applicable -------------------------------------------------------------------------- (Former name or former address, if changed since last report) 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. 2 ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS (c) Exhibits The following exhibits are filed herewith:
Exhibit Number Description ------- ----------- 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
3 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 EX-4 2 EXHIBIT 4 ========================================================================= 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 --------------------- ========================================================================= 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 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 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 5 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 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 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. ------------------- * This Cross-Reference Table is not part of the Indenture. 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 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. "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 C-1 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 C-2 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 C-3 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 C-4 (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 C-5 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 C-6 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 C-7 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 C-8 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. C-9 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 C-10 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 C-11 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. C-12 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 C-13 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 C-14 (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, C-15 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. C-16 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 C-17 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. C-18 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 C-19 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 C-20 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 C-21 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. C-22 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 C-23 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 C-24 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 C-25 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 C-26 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; C-27 (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 C-28 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 C-29 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 C-30 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 C-31 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 C-32 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 C-33 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 C-34 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 C-35 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. C-36 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 C-37 (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 C-38 (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. C-39 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 C-40 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. C-41 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 C-42 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 C-44 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 C-44 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. C-45 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; C-46 (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. C-47 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 C-48 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 C-49 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 C-50 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 C-51 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 C-52 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. C-53 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 C-54 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, C-55 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 C-56 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. C-57 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; C-58 (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. C-59 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: C-60 _______________________ Title: Secretary BANKERS TRUST COMPANY, as Trustee, by __________________________ Name: Title C-61 EX-10.(A) 3 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". 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 2 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, 3 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"). 4 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. 5 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 6 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 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, 8 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 9 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 10 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 11 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. 12 (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 (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 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 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 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 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 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 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 SCHEDULE I
Aggregate Purchasers Principal Amount ---------- Of Securities To Be Purchased ---------------- Lazard Freres & Co. LLC.................................... $125,000,000 --------------- Total................................................. $125,000,000 ===============
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. (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. EX-10.(B) 4 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: "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 "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 "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 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 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. 6 (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: 7 (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 8 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 9 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 10 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 11 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 12 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 13 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, 14 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 15 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. 16 (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 17 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 18 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 19 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. 20 (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 EX-99.(A) 5 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. EX-99.(B) 6 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. -----END PRIVACY-ENHANCED MESSAGE-----