Exhibit 10.29
REGISTRATION RIGHTS AGREEMENT
-----------------------------
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
October 28, 1997, among Apex Silver Mines Limited, a Cayman Islands exempted
limited liability company (the "Company"), Silver Holdings LDC ("Silver
Holdings"), Argentum LLC ("Argentum"), Consolidated Commodities Ltd.
("Consolidated"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), Litani Capital Management LDC
("Litani") and Aurum LLC ("Aurum"), (each of Silver Holdings, Argentum,
Consolidated, ▇▇▇▇▇▇, Litani and Aurum is referred to as a "Shareholder" and
collectively, the "Shareholders").
1. Certain Definitions.
-------------------
(a) The term "Holder" shall refer to (i) a Shareholder, (ii) each
successor or assignee of a Shareholder's rights hereunder, and (iii) each
transferee or assignee of all or a portion of the Shares of a Shareholder to the
extent such Shareholder shall specify such person pursuant to this clause (iii)
as a Holder.
(b) The term "Share" shall refer to the ordinary shares of the
share capital of the Company.
(c) The term "Registration Statement" shall refer to the
registration statement filed with the Securities and Exchange Commission with
respect to Restricted Shares.
(d) The term "Restricted Share" shall refer to each Share held by a
Shareholder until the date on which such Share (i) has been registered under the
Act and disposed of in accordance with the Registration Statement, (ii) is
distributed to the public pursuant to Rule 144 under the Act or is saleable
pursuant to Rule 144(k) under the Act or (iii) is transferred otherwise in
accordance with the Act such that the holder thereof has Shares that may be
freely and publicly resold without registration or an available exemption.
2. Demand Registrations.
--------------------
(a) Requests for Registration. Each of Silver Holdings and
-------------------------
Argentum may request at any time after 180 days after the Company's initial
public offering registration under the Securities Act of 1933, as amended (the
"Securities Act") of all or part of their Restricted Shares on Form S-1, or any
similar long-form registration statement ("Long-Form Registration") or, if
available, on Form S-2 or S-3, or any similar form of registration statement
("Short-Form Registration"). Each request for a Demand Registration (as defined
below) shall specify the approximate number of Restricted Shares requested to be
registered, the anticipated per share price range for such offering and the
proposed underwriter. Within ten days after receipt of any such request, the
Company will give written notice of such requested registration to the other
Shareholders and, subject to paragraph 2(c) below, will include in such
registration all Restricted Shares with respect to which the Company has
received written requests for inclusion therein within 15 days after the receipt
of the Company's notice. All registrations requested pursuant to this paragraph
2(a) are referred to herein as "Demand Registrations."
--------------------
(b) Number of Demand Registrations. Each of Silver Holdings and
------------------------------
Argentum will each be entitled to request three (3) Long-Form Registrations and
each may request an additional three (3) Short-Form Registrations for which the
Company will pay all Registration Expenses. A registration will not count as a
Demand Registration until it has become effective; provided that in any event
--------
the Company will pay all Registration Expenses in connection with any initiated
registration whether or not it has become effective. If a Demand Registration is
a last Demand Registration permitted under this Section 2(b), then such
registration shall not count as a last Demand Registration (and such demanding
Shareholder will be entitled to one, and only one, additional request for a
Demand Registration) unless the party requesting such registration is able (and
so requests) to include in such registration that amount of Restricted Shares
which will result in at least 90% of all Restricted Shares having been
registered pursuant to the Demand Registrations and Piggyback Registration
available pursuant to this Agreement.
(c) Priority on Demand Registrations. The Company will not include
--------------------------------
in any Demand Registration any Shares which are not Restricted Shares without
the prior written consent of the demanding Shareholders. If a Demand
Registration is an underwritten offering and the managing underwriters advise
the Company in writing that in their opinion the number of Restricted Shares
and, if permitted hereunder, other securities requested to be included in such
offering exceeds the number of Restricted Shares and other securities, if any,
which can be sold therein without adversely affecting the marketability of the
offering (the "Offering Quantity"), the Company will include in such
-----------------
registration securities in the following priority:
(i) first, before including any securities which are not Restricted
Shares, the Company will include all of the Restricted Shares requested to
be included by the demanding Shareholders, and if the number of Restricted
Shares requested to be included exceeds the Offering Quantity, then the
Company shall include only such demanding Shareholders' pro rata share of
the Offering Quantity, based on the amount of Restricted Shares held by the
demanding Shareholders; and
(ii) second, to the extent (and only to the extent) that the
Offering Quantity exceeds the aggregate amount of Restricted Shares which
are requested to be included in such registration, the Company shall
include in such registration Restricted Shares requested to be included by
other Shareholders, and if such number exceeds the Offering Quantity, then
the Company shall include only such Shareholders pro rata share of the
Offering quantity, based on the amount of Restricted Shares held by such
Shareholders;
(iii) third, to the extent (and only to the extent) that the Offering
Quantity exceeds the aggregate amount of Restricted Shares which are
requested to be included in such registration, the Company shall include in
such registration any other securities requested to be included in the
offering.
Any person other than a Shareholder who participates in Demand Registrations
which are not at the Company's expense must pay their share of the Registration
Expenses as provided in Section 6 hereof.
(d) Restrictions on Demand Registrations. The Company will not be
------------------------------------
obligated to effect any Demand Registration within 120 days after the effective
date of a previous Demand
-2-
Registration. The Company may postpone upon one occasion in any 365 day period
for up to 90 days the filing or the effectiveness of a registration statement
for a Demand Registration if the Company's board of directors determines that
such Demand Registration would reasonably be expected to have a material adverse
effect on any proposal or plan by the Company or any of its subsidiaries to
engage in any acquisition of assets (other than in the ordinary course of
business) or any merger, consolidation, tender offer or similar transaction
provided, however, that in such event, the party requesting such Demand
--------
Registration will be entitled to withdraw such request and, if such request is
withdrawn, such Demand Registration will not count as one of the permitted
Demand Registrations hereunder and the Company will pay all Registration
Expenses in connection with such registration.
(e) Selection of Underwriters. The holder of a majority of the
-------------------------
Restricted Shares initiating any Demand Registration will have the right to
select the investment banker(s) and manager(s) to administer the offering,
subject to the Company's approval which will not be unreasonably withheld.
(f) Other Registration Rights. Except as provided in this
-------------------------
Agreement, the Company will not grant to any Persons the right to request the
Company to register any equity securities of the Company, or any securities
convertible or exchangeable into or exercisable for such securities, without the
prior written consent of both Silver Holdings and Argentum.
3. Piggyback Registrations.
-----------------------
(a) Right to Piggyback. Whenever the Company proposes to register
------------------
any of its securities under the Securities Act (other than pursuant to a Demand
Registration or a registration on Form S-4 or S-8 or any successor or similar
forms) and the registration form to be used may be used for the registration of
Restricted Shares (a "Piggyback Registration"), whether or not for sale for its
----------------------
own account, the Company will give prompt written notice to all the Holders of
its intention to effect such a registration and will include in such
registration all Restricted Shares with respect to which the Company has
received written requests for inclusion therein within 30 days after the receipt
of the Company's notice.
(b) Piggyback Expenses. The Registration Expenses of all the
------------------
Holders will be paid by the Company in all Piggyback Registrations
(c) Priority on Primary Registrations. If a Piggyback Registration
---------------------------------
is an underwritten primary registration on behalf of the Company, and the
managing underwriters advise the Company in writing (with a copy to each party
hereto requesting registration of Restricted Shares) that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering without adversely affecting the
marketability of such offering (the "Company Offering Quantity"), the Company
-------------------------
will include in such registration securities in the following priority:
(i) first, the securities the Company proposes to sell;
(ii) second, before including any securities which are not
Restricted Shares, the Company will include all of the Restricted Shares
requested to be included by all of the Holders, and if the number of
Restricted Shares requested to be included exceeds the
-3-
Company Offering Quantity, then the Company shall include only each
requesting Holder's pro rata share of the Company Offering Quantity, based
on the amount of Restricted Shares held by each Holder;
(iii) third, to the extent (and only to the extent) that the Company
Offering Quantity exceeds the aggregate amount of Restricted Shares which
are requested to be included in such registration, the Company shall
include in such registration any other securities requested to be included
in the offering.
(d) Other Registrations. If the Company has previously filed a
-------------------
Registration Statement with respect to Restricted Shares pursuant to paragraph 2
or pursuant to this paragraph 3, and if such previous registration has not been
withdrawn or abandoned, the Company will not file or cause to be effected any
other registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities
Act (except on Form S-4 or S-8 or any successor form), whether on its own behalf
or at the request of any holder or holders of such securities, until a period of
at least 90 days has elapsed from the effective date of such previous
registration.
4. Holdback Agreements.
-------------------
(a) To the extent not inconsistent with applicable law, each Holder
agrees not to effect any public sale or distribution (including sales pursuant
to Rule 144) of equity securities of the Company, or any securities, options or
rights convertible into or exchangeable or exercisable for such securities,
during the seven days prior to and the 90-day period beginning on the effective
date of any underwritten Demand Registration or any underwritten Piggyback
Registration in which Restricted Shares are included (except as part of such
underwritten registration), unless the underwriters managing the registered
public offering otherwise agree; provided that such restrictions shall not be
--------
more restrictive in duration or scope than restrictions imposed on (i) any
Person which has been granted registration rights by the Company, (ii) any
officer or director of the Company, or (iii) any 5% holder of Shares; and
provided, further, that nothing herein shall restrict, directly or indirectly,
-------- -------
(i) bona fide pledge of Shares or the subsequent transfer upon default in
connection with any such pledge or (ii) charitable contribution. In addition,
each Shareholder may distribute Shares to its shareholders, partners or members
so long as such person or entity agrees to be bound by the terms of this
Agreement.
(b) The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 90-day period beginning on the effective date of any underwritten
Demand Registration or any underwritten Piggyback Registration (except as part
of such underwritten registration or pursuant to registrations on Form S-4 or S-
8 or any successor form), unless the underwriters managing the registered public
offering otherwise agree, and (ii) to cause each holder of its Shares, or any
securities convertible into or exchangeable or exercisable for Shares, purchased
from the Company at any time after the date of this Agreement (other than in a
registered public offering) to agree not to effect any public sale or
distribution (including sales pursuant to Rule 144) of any such securities
during such period (except as part of such underwritten registration, if
otherwise permitted), unless the underwriters managing the registered public
offering otherwise agree.
-4-
5. Registration Procedures. In connection with the Registration
-----------------------
Statement, the following provisions shall apply:
(a) The Company shall furnish to each selling Holder, prior to the
filing thereof with the Securities and Exchange Commission, a copy of the
Registration Statement and each amendment thereof and each supplement, if any,
to the prospectus included therein and shall use its best efforts to reflect in
each such document, when so filed with the Commission, such comments as the
Holders reasonably may propose,
(b) The Company shall prepare and within 60 days (or 45 days with
respect to any Short-Form Registration) after the end of the period within which
requests for registration may be given to the Company file with the Commission a
registration statement with respect to such Restricted Shares and thereafter use
its best efforts to cause such registration statement to become effective.
(c) The Company shall prepare and file with the Commission such
amendments and supplements to such Registration Statement and the prospectus
used in connection therewith as may be necessary to keep such Registration
Statement effective for a period of either (i) not less than 180 days (subject
to extension pursuant to Section 5(p)) or, if such Registration Statement
relates to an underwritten offering, such longer period as in the opinion of
counsel for the underwriters a prospectus is required by law to be delivered in
connection with sales of Restricted Shares by an underwriter or dealer or (ii)
such shorter period as will terminate when all of the securities covered by such
Registration Statement have been disposed of in accordance with the intended
methods of disposition by the seller or sellers thereof set forth in such
Registration Statement (but in any event not before the expiration of any
longer period required under the Securities Act), and to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement until such time as all of such
securities have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such Registration
Statement.
(d) The Company shall advise the selling Holders, and, if requested
by such Holders, confirm such advice in writing (which advice pursuant to
clauses (ii) - (v) hereof shall be accompanied by an instruction to suspend the
use of the prospectus until the requisite changes have been made):
(i) when the Registration Statement and any amendment thereto has been
filed with the Commission and when the Registration Statement or any post
effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements to
the Registration Statement or the prospectus included therein or for
additional information;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose;
-5-
(iv) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and
(v) of the happening of any event that requires the making of any
changes in the Registration Statement or the prospectus or the filing of
any reports under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") so that, as of such date, the statements therein are not
misleading and do not omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(e) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 5(d) hereof during the period for which the Company is
required to maintain an effective Registration Statement, the Company will (A)
use its best efforts to promptly obtain the withdrawal of any stop order or
order suspending the effectiveness of the Registration Statement and (B) prepare
a post-effective amendment to the Registration Statement or a supplement to the
related prospectus or file any other required document as soon as possible so
that, as thereafter delivered to purchasers of the Shares, 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, and will comply with the Act and the
rules promulgated thereunder.
(f) The Company will furnish to each Holder included within the
coverage of the Registration Statement, without charge, copies of the
Registration Statement and any amendment thereto, including financial statements
and schedules, and, if the Holder so requests in writing, all exhibits
(including those incorporated by reference) in such number as such Holder may
reasonably request from time to time.
(g) The Company will deliver to each Holder included within the
coverage of the Registration Statement, without charge, as many copies of the
prospectus (including each preliminary prospectus) included in the Registration
Statement and any amendment or supplement thereto as such Holder may reasonably
request; and the Company consents to the use of the prospectus or any amendment
or supplement thereto by each Holder in connection with the offering and sale of
the Shares covered by the prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Shares pursuant to the
Registration Statement, the Company will use its best efforts to register or
qualify or cooperate with each Holder selling Shares pursuant to such
Registration Statement and their respective counsel in connection with the
registration or qualification of such securities for offer and sale under the
securities or blue sky laws of such jurisdictions as such counsel reasonably
requests in writing on behalf of such Holder and do any and all other acts or
things necessary or advisable to enable the offer and sale in such jurisdictions
of the Shares covered by the Registration Statement; provided, however, that the
Company will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which would
subject it to general service of process or to taxation in any such jurisdiction
where it is not then so subject.
-6-
(i) The Company will cooperate with each Holder to facilitate the
timely preparation and delivery of certificates representing Shares to be sold
pursuant each to the Registration Statement free of any restrictive legends and
registered in such names as Holder may request in writing prior to sales of
Shares pursuant to the Registration Statement.
(j) The Company will upon request provide each Holder selling
Shares pursuant to such Registration Statement with printed certificates for its
Shares in a form acceptable to such Holder.
(k) The Company will comply with all applicable rules and
regulations of the Commission and will make generally available to its security
holders as soon as practicable but in any event not later than eighteen months
after the effective date of the applicable Registration Statement an earnings
statement satisfying the provisions of Section 11(a) of the Act or Rule 158
promulgated thereunder.
(l) The Company may require each Holder selling Shares pursuant to
the Registration Statement to furnish to the Company such information regarding
the Holder, the Shares beneficially owned by such Holder and the intended method
of distribution of such Shares as the Company may from time to time reasonably
require for inclusion in the Registration Statement, and the Company may exclude
from such registration the Shares of any Holder that fails to furnish such
information within a reasonable time after receiving such request.
(m) The Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form) and take
all such other action, if any, as Holders of a majority of Shares being sold or
the managing underwriters (if any) shall reasonably request in order to
facilitate the disposition of Shares pursuant to the Registration Statement;
provided, however, that the Company shall have no obligation to pay any
discounts or underwriting commission.
(n) The Company, if requested by Holders of a majority of the
Shares being sold, or the managing underwriters (if any) in connection with the
Registration Statement, shall use its best efforts to cause (i) its counsel to
deliver an opinion relating to the Registration Statement and the Shares, in
customary form (and covering such matters of the type customarily covered by
legal opinions of such nature) addressed to such Holders and the managing
underwriters, if any, thereof and dated the effective date of such Registration
Statement; (ii) its officers to execute and deliver all customary documents and
certificates requested by Holders of a majority of the Shares being sold or the
managing underwriters (if any); and (iii) its independent public accountants to
provide a comfort letter in customary form (and covering such matters of the
type customarily covered by comfort letter).
(o) The Company will use its best efforts to cause the Shares
covered by the Registration Statement to be listed on each securities exchange,
if any, or NASDAQ on which similar securities issued by the Company are then
listed, if so requested by Holders of a majority of Shares covered by the
Registration Statement, or by the managing underwriters, if any.
(p) The Company will make available for inspection by any Holder,
any underwriter participating in any disposition pursuant to such Registration
Statement and any attorney, accountant or other agent retained by any such
Holder or underwriter, all financial and
-7-
other records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors, employees and independent accountants
to supply all information reasonably requested by any such Holder, underwriter,
attorney, accountant or agent in connection with such registration statement.
(q) Each Holder agrees that upon receipt of any notice of the
Company pursuant to paragraphs (ii) through (v) of Section 5(d) hereof, such
Holder will discontinue disposition of such Shares pursuant to the Registration
Statement until such Holder's receipt of copies of the supplemental or amended
Prospectus contemplated by Section 5(c) hereof, or until advised in writing (the
"Advice") by the Company that the use of the applicable prospectus may be
resumed. If the Company shall give any notice under Section 5(d)(ii) - (v)
during the registration period, such registration period shall be extended by
the number of days during such period from and including the date of the giving
of such notice to and including the date when each seller of Shares covered by
the Registration Statement shall have received (x) the copies of the
supplemental or amended prospectus contemplated by Section 5(c) (if an amended
or supplemental prospectus is required) or (y) the Advice (if no amended or
supplemental Prospectus is required).
6. Registration Expenses. The Company will bear all expenses
---------------------
incurred in connection with the performance of its obligations under this
Agreement (except as otherwise provided in the proviso to Section 5(m) hereof)
and the Company will reimburse the Holders for the fees, disbursements and
expenses of one counsel (and any local counsel as reasonably required) chosen by
the Holders of a majority of the Shares to be sold pursuant to a Registration
Statement acting for the Holders in connection therewith.
7. Indemnification.
---------------
(a) The Company shall indemnify and hold harmless each of the
Holders of Shares to be included in such registration against any losses,
claims, damages or liabilities, joint or several, to which such Holder may
become subject under the Act, the Exchange 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 the Registration Statement under which such Shares
were registered under the Act, or any preliminary, final or summary prospectus
contained therein or furnished by the Company to any such Holder, 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 shall reimburse such Holder for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that the Company
shall not be liable to any such person in any such case to the extent that any
such loss, claim, damage or liability (or actions in respect thereof) arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in the Registration Statement, or preliminary, final or
summary prospectus, or amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by, or on behalf
of, such person expressly for use in connection therewith.
(b) The Company shall require, as a condition to including any
Shares in any Registration Statement filed pursuant to this Agreement and to
entering into any underwriting
-8-
agreement with respect thereto, that the Company shall have received an
undertaking reasonably satisfactory to it from the Holder of such Shares and
from each underwriter named in any such underwriting agreement, severally and
not jointly, to (i) indemnify and hold harmless the Company and all other
Holders against any losses, claims, damages or liabilities to which the Company
or such other Holders may become subject under the Act, the Exchange 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 the Registration Statement, or
any preliminary, final or summary prospectus contained therein or furnished by
the Company to any such Holder, 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, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Holder or underwriter expressly for use in
connection therewith and (ii) reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that no such Holder shall be required to undertake liability to any
person under this Section 7(b) 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 Shares
pursuant to such registration.
(c) Promptly after receipt by an indemnified party under Sections
7(a) or 7(b) hereof written notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party pursuant to the indemnification provisions of or contemplated
by this Section 7, notify such indemnifying party in writing of the commencement
of such action; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party other
than under the indemnification provisions of or contemplated by Sections 7(a) or
7(b) hereof. In case any such action shall be brought against any indemnified
party and it shall notify an indemnifying party of the commencement thereof,
such indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, such
indemnifying party shall not be liable to such indemnified party for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. Such indemnifying party shall not enter
into any settlement with a party without obtaining an unconditional release of
each indemnified party with respect to any and all claims against each
indemnified party. An indemnified party shall not enter into any settlement
without the consent of the indemnifying party which shall not be unreasonably
withheld.
(d) Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Sections 7(a) or 7(b) are unavailable
to or insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages or liabilities (or actions in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the
-9-
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 7(d) were determined by
pro rata allocation (even if the Holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 7(d). 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 above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(d), no Holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the proceeds
received by such Holder from the sale of any Shares (after deducting any fees,
discounts and commissions applicable thereto) exceeds the amount of any damages
which such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and no underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
underwriter 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. The Holders' and any underwriters' obligations in
this Section 7(d) to contribute shall be several in proportion to the principal
amount of Shares registered or underwritten, as the case may be, by them and not
joint.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director and partner of
each Holder, agent and underwriter and each person, if any, who controls any
Holder, agent or underwriter within the meaning of the Act; and the obligations
of the Holders and any underwriters contemplated by this Section 7 shall be in
addition to any liability which the respective Holder or underwriter may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Restricted Shares on the
basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
-10-
8. Miscellaneous.
-------------
(a) Amendments and Waivers. The provisions of this Agreement may
----------------------
not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, unless the Company has obtained the
written consent of Silver Holdings, Argentum and Holders of a majority of the
Shares of the other Shareholders. Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of the Holders whose Shares are being sold
pursuant to the Registration Statement and that does not directly or indirectly
affect the rights of other Holders may be given by Holders of a majority of the
Shares being sold by such Holders pursuant to the Registration Statement.
(b) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery: (i) if to a
Holder, at the most current address given by such Holder to the Company in
accordance with the provisions of this Section 8(b) and (ii) if to the Company:
Apex Silver Mines Limited, c/o Curacao Corporation Company, N.V., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ Antilles (Telecopy: 011-599-9-322-001);
copy to ▇▇▇▇▇▇▇ ▇. Dooley, Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P., ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇ (Telecopy: 212-872-1002). All such
notices and communications shall be deemed to have been duly given: when
delivered by hand, if personally delivered; three business days after being
delivered to a next-day air courier; when answered back, if faxed; and when
receipt is acknowledged by the recipient's telecopier machine, if telecopied.
(c) Successors And Assigns. This Agreement shall be binding upon
----------------------
and inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns.
(d) Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall be deemed an original, but both of which together shall
constitute one and the same instrument.
(e) Governing Law. This Agreement shall be governed by the laws of
-------------
the State of New York, without giving effect to any choice of law or conflict of
law provision or rule that would cause the application of the law of any
jurisdiction other than the State of New York.
(f) Headings. The headings in this Agreement are for convenience
--------
of reference only and shall not limit or otherwise affect the meaning hereof.
(g) Severability. The remedies provided herein are cumulative and
------------
not exclusive of any remedies provided by law. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that
-11-
they would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
[REST OF PAGE DELIBERATELY LEFT BLANK]
-12-
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first above written.
APEX SILVER MINES LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman
SILVER HOLDINGS LDC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Director
ARGENTUM LLC
By: Caledonian Bank & Trust Limited,
as Secratary
By: /s/ Vijayabalan Muregesu
----------------------------
Name: Vijayabalan Muregesu
Title: Manager-Banking
CONSOLIDATED COMMODITIES LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
LITANI CAPITAL MANAGEMENT LDC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
AURUM LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Trustee
-14-