EXHIBIT 99.03
February __, 1997
Hecla Mining Company
0000 Xxxxxxx Xxxxx
Xxxxx x'Xxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxxx
RE: SUBSCRIPTION AGREEMENT
Gentlemen:
1. The undersigned (the "Purchaser") hereby subscribes
for, and agrees to purchase from Hecla Mining Company, a
Delaware corporation (the "Company"), __________ shares (the
"Shares") of the Company's Common Stock, par value U.S.$0.25
per share (including the preferred stock purchase rights
associated with the Common Stock issued pursuant to that
certain Right Agreement, dated as of May 10, 1996, between the
Company and American Stock Transfer & Trust Company, as Rights
Agent) at a purchase price of U.S.$6.25 per share (the "Per-
Share Purchase Price"), upon the terms and subject to the
conditions set forth herein.
2. The closing of the purchase and sale of the Shares
(the "Closing") shall take place at the offices of Wachtell,
Lipton, Xxxxx & Xxxx, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 at 10:00 a.m., New York City time, after the later of
(the "Closing Date"): (i) the third New York Stock Exchange,
Inc. ("NYSE") trading day ("NYSE Trading Day") after the date
the Company accepts this Agreement in writing; or (ii) the
first NYSE trading day after the date on which all of the
conditions set forth in paragraphs 4 and 5 of this Agreement
shall have been satisfied or waived. At the Closing, the
Purchaser shall deliver to the Company (by wire transfer in
U.S. dollars to an account to be designated in writing by the
Company to the Purchaser) the Aggregate Purchase Price (as
hereinafter defined) in same-day funds. The "Aggregate
Purchase Price" shall be equal to (a) the number of Shares
agreed to be purchased by the Purchaser pursuant to this
Agreement, multiplied by (b) the Per-Share Purchase Price, all
as set forth in paragraph 1 of this Agreement. Following
receipt of the Aggregate Purchase Price, at the Closing the
Company shall deliver to the Purchaser, or its designee,
representative or account, one or more stock certificates,
registered on the Company's stock transfer books in the name of
the Purchaser (or a depository account for the benefit of the
Purchaser) as set forth on the signature page of this
Agreement.
3. The Purchaser hereby makes the following representa-
tions, warranties and covenants to the Company:
(i) The Purchaser has the requisite power and
authority to enter into and perform this Agreement, the
execution and delivery of this Agreement by the Purchaser
and the consummation by it of the transactions
contemplated hereby have been duly authorized by all
necessary action, and no further consent or authorization
of the Purchaser is required. This Agreement has been
duly executed and delivered by the Purchaser and upon
acceptance of this Agreement by the Company, this
Agreement constitutes a valid and binding obligation of
the Purchaser enforceable against the Purchaser in
accordance with its terms.
(ii) The execution, delivery and performance of this
Agreement by the Purchaser and the consummation by the
Purchaser of the transactions contemplated hereby or
relating hereto do not and will not (a) result in the vio-
lation of any provision of the Purchaser's organizational
documents or (b) conflict with, or constitute a default
(or an event which with notice or lapse of time or both
would become a default) under, any agreement, indenture or
instrument to which the Purchaser is a party, or result in
a violation of any law, rule, regulation, order, judgment
or decree of any court or governmental agency applicable
to the Purchaser or its properties. The Purchaser is not
required to obtain any consent, authorization or order of,
or make any filing or registration with, any court or
governmental agency in order for it to execute, deliver or
perform any of its obligations under this Agreement or
purchase the Shares in accordance with the terms hereof.
(iii) The Purchaser has available and will have
available as of the Closing Date funds in the amount of
the Aggregate Purchase Price sufficient to purchase the
Shares pursuant to this Agreement.
(iv) The Purchaser has not received from the Company
or any other source (including Muzinich & Co., as
Placement Agent), any material non-public information
concerning the Company or its operations. In purchasing
the Shares, the Purchaser confirms that it is relying
solely upon the Company's Prospectus Supplement (including
the accompanying Prospectus dated September 5, 1995), as the
same may be amended from time-to-time prior to the Closing
(collectively, the "Prospectus") to be delivered to the
Purchaser by the Company pursuant to this Agreement, the
documents incorporated by reference in the Prospectus, and
other documents publicly filed by the Company with the
United States Securities and Exchange Commission (the
"SEC"). The Purchaser's knowledge and experience in
financial and business matters is such that it is capable
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of evaluating the risks of the investment in the Shares
and in making its decision to purchase the Shares hereby
subscribed for, it has relied upon the independent
investigations made by it and, to the extent believed by
it to be appropriate, its representatives, including its
own professional, tax and other advisors.
(v) The Shares to be acquired by the Purchaser
pursuant to this Agreement are being acquired for its own
account in the ordinary course of the Purchaser's business
and with no intention of distributing or reselling the
Shares or any part thereof in any transaction which would
be in violation of the securities laws of the United
States of America or any State. The Purchaser is not a
"broker-dealer" as defined under United States federal
securities laws. If the Purchaser should in the future
decide to dispose of any of the Shares, the Purchaser
understands and agrees that it may do so only in com-
pliance with the United States Securities Act of 1933, as
amended (the "Act"), as then in effect. The Purchaser is
not an "underwriter" as defined in the Act.
(vi) The Purchaser hereby further represents and
warrants that it is an "Accredited Investor" (as such term
is defined in Rule 501 of Regulation D under the Act).
4. Upon acceptance of this Agreement, the Company makes
the following representations, warranties and covenants to the
Purchaser:
(i) The Company has the requisite power and
authority to enter into and perform this Agreement, the
execution and delivery of this Agreement by the Company
and the consummation by it of the transactions
contemplated hereby have been duly authorized by all
necessary action, and no further consent or authorization
of the Company is required.
(ii) The execution, delivery and performance of this
Agreement by the Company and the consummation by the
Company of the transactions contemplated hereby or
relating hereto do not and will not (a) result in the vio-
lation of any provision of the Company's organizational
documents or (b) conflict with, or constitute a default
(or an event which with notice or lapse of time or both
would become a default) under, any agreement, indenture or
instrument to which the Company is a party, or result in a
violation of any law, rule, regulation, order, judgment or
decree of any court or governmental agency applicable to
the Company or its properties, subject to the filing of
the Prospectus Supplement with the Commission, the
approval by the NYSE of the listing of the Shares and, to
the extent required, filings with any State securities
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commission or pursuant to any "Blue Sky" laws or
regulations.
(iii) Prior to the Closing, the Company will file
the Prospectus Supplement (including any amendments
thereto) with the SEC and deliver a copy of the Prospectus
to the Purchaser accompanied by an executed copy of this
Agreement and wire transfer instructions regarding
delivery of the Aggregate Purchase Price at the Closing.
As of the Closing Date, neither the Prospectus, nor any
amendments thereto, nor any documents incorporated by
reference therein, will include any untrue statement of a
material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(iv) When paid for in accordance with the terms of
this Agreement, the Shares shall be validly issued, fully
paid and nonassessable.
5. The obligation hereunder of the Company to sell the
Shares to the Purchaser, is subject to the satisfaction, at or
before the Closing, of each of the following conditions set
forth below. These conditions are for the Company's sole
benefit and may be waived by the Company at any time in its
sole discretion.
(i) The representations and warranties of the Pur-
chaser shall be true and correct as of the date when made
and as of the Closing Date as though made at that time.
(ii) The Purchaser shall have performed, satisfied
and complied in all material respects with all covenants,
agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Purchaser at
or prior to the Closing.
(iii) No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been
enacted, entered or promulgated by any court of gov-
ernmental authority or governmental agency of competent
jurisdiction which prohibits the consummation of any of
the transactions contemplated by this Agreement.
(iv) The issuance of the Shares shall have been
approved by the NYSE subject to official notice of
issuance.
(v) On the Closing Date, no stop order or similar
restraining order shall have been entered by the SEC or
proceeding for that purpose initiated or any state securi-
ties administrator prohibiting the sale of the Shares
pursuant to this Agreement.
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(vi) The Company shall have received Subscription
Agreements, including this Agreement, representing
commitments to purchase shares of Common Stock with
Aggregate Purchase Prices under all such Subscription
Agreements totalling at least U.S.$22 million and each
Subscription Agreement shall be in full force and effect
and each of the purchasers thereunder shall be prepared to
fund its commitment thereunder.
6. The obligation of the Purchaser hereunder to acquire
and pay for the Shares is subject to the satisfaction, at or
before the Closing, of each of the following conditions set
forth below. These conditions are for the Purchaser's sole
benefit and may be waived by such Purchaser at any time in its
sole discretion.
(i) The representations and warranties of the
Company shall be true and correct as of the date when made
and as of the Closing Date as though made at that time
(except for representations and warranties that speak as
of a particular date).
(ii) The Company shall have performed, satisfied and
complied in all material respects with all covenants,
agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Company at or
prior to the Closing.
7. (i) This Agreement, may be terminated at any time by
the mutual written consent of the Company and the Purchaser.
(ii) This Agreement may be terminated by action of
the Purchaser and/or the Company at any time after March 7,
1997 if the sale of the Shares shall not have been consummated
by such date.
(iii) This Agreement may be terminated by action
of the Purchaser if any one or more of the conditions set forth
in paragraph 5 of this Agreement has not been fulfilled as of
the Closing Date.
(iv) This Agreement may be terminated by action of
the Company if any one or more of the conditions set forth in
paragraph 6 of this Agreement has not been fulfilled as of the
Closing Date.
8. Each party shall pay the fees and expenses of its
advisers, counsel, accountants and other experts, if any, and
all other expenses incurred by such party incident to the
negotiation, preparation, execution, delivery and performance
of this Agreement.
9. The Company and the Purchaser acknowledge and agree
that irreparable damage would occur in the event that any of
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the provisions of this Agreement were not performed in
accordance with their specific terms or are otherwise breached
and that the Company and/or the Purchaser would not have an
adequate remedy at law. It is accordingly agreed that the par-
ties shall be entitled to an injunction or injunctions to pre-
vent or cure breaches of the provisions of this Agreement and
to enforce specifically the terms and provisions hereof, this
being in addition to any other remedy to which either of them
may be entitled by law or equity.
10. This Agreement contains the entire understanding of
the parties with respect to the matters covered hereby,
supersedes any and all prior or contemporaneous, written or
oral agreements or undertakings with respect thereto and,
except as specifically set forth herein, neither the Company
nor the Purchaser makes any representation, warranty, covenant
or undertaking with respect to such matters. No provision of
this Agreement may be waived or amended other than by a written
instrument signed by the party against whom enforcement of any
such amendment or waiver is sought.
11. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall
be effective (a) upon receipt by hand delivery, telecopy or
facsimile at the address or number designated below or (b) on
the second NYSE Trading Day following the date of mailing by
express courier service, fully prepaid, addressed to such ad-
dress, or upon actual receipt of such mailing, whichever shall
first occur. The addresses for such communications shall be:
If to the Company:
Hecla Mining Company
0000 Xxxxxxx Xxxxx
Xxxxx x'Xxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
With a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxx, Esq.
If to the Purchaser, at the address and telecopy
number set forth on the signature page of this Agreement.
12. No waiver by either party of any default with respect
to any provision, condition or requirement of this Agreement
shall be deemed to be a continuing waiver in the future or a
waiver of any other provision, condition or requirement hereof;
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nor shall any delay or omission of either party to exercise any
right hereunder in any manner impair the exercise of any such
right accruing to it thereafter.
13. Upon execution of this Agreement by the Company, this
Agreement and all representations, warranties, covenants and
agreements contained in this Agreement shall be binding upon
and inure to the benefit of the parties and their successors
and assigns. The parties hereto may amend this Agreement
without notice to or the consent of any third party. Neither
the Company nor the Purchaser shall assign this Agreement or
any rights or obligations hereunder without the prior written
consent of the other (which consent may be withheld for any
reason, no reason, or an unreasonable reason, in the sole
discretion of the party from whom consent is sought). The
assignment by a party of this Agreement or any rights hereunder
shall not affect the obligations of such party under this
Agreement. The term "successor and assigns" as used in this
Agreement shall not include any purchaser, as such purchaser,
of the Shares from the Purchaser.
14. This Agreement is intended for the benefit of the
parties hereto and their respective permitted successors and
assigns exclusively and is not for the benefit of, nor may any
provision hereof be enforced by, any other person.
15. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of
New York without regard to the principles of conflict of laws.
Each of the parties hereto, and their respective permitted
successors and assigns, agrees to submit to the jurisdiction of
the state and federal courts located in the State of New York
in any action or proceeding arising out of or related to this
Agreement. THE PARTIES HERETO WAIVE THEIR RIGHT TO A JURY
TRIAL WITH RESPECT TO DISPUTES HEREUNDER.
16. The provisions set forth in this Agreement (other
than the provisions set forth in paragraphs 1 and 2 hereof) and
any other document referred to in this Agreement are severable.
If any provision of this Agreement, or any other document
referred to in this Agreement, is held to be invalid or
unenforceable in any jurisdiction by any court of governmental
authority or governmental agency of competent jurisdiction, the
remaining provisions of this Agreement and any other document
referred to in this Agreement, shall not be affected thereby,
and shall remain valid and enforceable in such jurisdiction,
and any such invalidity or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in
any other jurisdiction.
17. This Agreement may be executed in counterparts, each
of which together shall be deemed to be an original, and both
of which together shall be considered one and the same
agreement and shall become effective when counterparts have
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been signed by each party and delivered to the other party, it
being understood that both parties need not sign the same
counterpart. In the event any signature is delivered by
facsimile transmission, the party using such means of delivery
shall cause four additional executed signature pages to be
physically delivered to the other party within two NYSE Trading
Days of the execution and delivery hereof.
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The Purchaser has caused this Agreement to be duly
executed by its authorized officers as of the date first above
written. If this Agreement is acceptable to the Company,
please acknowledge your agreement and acceptance below and
return a copy to the Purchaser as provided herein.
Name of Purchaser:
_________________________________________
By: _____________________________________
Name:
Title:
Name:
Title:
Address of Purchaser:
________________________________________
________________________________________
________________________________________
Name to be used on Common
Stock Certificate:
________________________________________
Address:
________________________________________
________________________________________
________________________________________
Agreed and Accepted as of
this 19th day of February, 1997:
HECLA MINING COMPANY
By:
Xxxx X. Xxxxxxxx
Chief Financial Officer
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