EXHIBIT 1
CONFORMED COPY
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HECLA MINING COMPANY
(a Delaware corporation)
2,500,000 Shares of Common Stock
UNDERWRITING AGREEMENT
Dated: January 23, 1996
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__________________________________________________________________
HECLA MINING COMPANY
(a Delaware corporation)
2,500,000 Shares of Common Stock
UNDERWRITING AGREEMENT
January 23, 1996
SALOMON BROTHERS INC
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
Hecla Mining Company, a Delaware corporation (the
"Company"), proposes to issue and sell to you 2,500,000
authorized but unissued shares of the Company's Common Stock,
par value $0.25 per share (shares of which class of stock of
the Company are hereinafter referred to as "Common Stock").
The Company also grants to you an option to purchase all or any
part of 375,000 additional shares of Common Stock, which option
shall expire upon the close of trading on the New York Stock
Exchange (the "NYSE") on the date hereof. The aforesaid
2,500,000 shares of Common Stock (the "Initial Shares"),
together with all or any part of the 375,000 additional shares
of Common Stock subject to the option described above (the
"Option Shares"), are collectively herein referred to as the
"Shares". The Shares are more fully described in the
Prospectus and Prospectus Supplement referred to below. You
have advised us that you desire to purchase the Shares.
The Company has prepared and filed with the
Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (Registration No. 33-59659)
relating to the registration of up to $100,000,000 in the
aggregate of the Common Stock and certain debt securities,
preferred stock and warrants and the offering thereof from time
to time in accordance with Rule 415 under the Securities Act of
1933, as amended (the "1933 Act"). Such registration statement
was declared effective by the Commission on September 5, 1995.
As provided in Section 3(a), a prospectus supplement reflecting
the terms of the offering of the Shares and the other matters
set forth therein has been prepared and will be filed pursuant
to Rule 424 under the 1933 Act. Such prospectus supplement, in
the form first filed with the Commission after the date hereof
pursuant to Rule 424, is herein referred to as the "Prospectus
Supplement". Such registration statement, as amended at the
date hereof, including the exhibits thereto and the documents
incorporated by reference therein, is herein called the
"Registration Statement", and the base prospectus relating to
all offerings of securities under the Registration Statement
included in the Registration Statement at the time Registration
Statement was declared effective, as supplemented by the
Prospectus Supplement, and including the documents filed by the
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Company with the Commission pursuant to the Securities Exchange
Act of 1934, as amended (the "1934 Act"), that are incorporated
by reference therein, is herein called the "Prospectus".
Section 1. Representations and Warranties. The
Company represents and warrants to and agrees with you that:
(a) The Company meets the requirements for use of
Form S-3 under the 1933 Act and on the effective date of
the Registration Statement, the Registration Statement
complied in all material respects with the requirements of
the 1933 Act and the rules and regulations of the
Commission thereunder (the "1933 Act Regulations") and did
not 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;
on the date hereof and at the Closing Time (as defined
below), (A) the Registration Statement complies and will
comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations, (B) the
Registration Statement does not include and will not
include an untrue statement of a material fact and does
not omit and will not omit to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading and (C) the Prospectus
does not include and will not include an untrue statement
of a material fact and does not omit and will not 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 the Company makes no representations or
warranties as to statements or omissions made in reliance
upon and in conformity with information furnished in
writing to the Company by you expressly for use in the
Registration Statement or the Prospectus.
(b) The documents incorporated by reference in the
Registration Statement and the Prospectus pursuant to Item
12 of Form S-3 under the 1933 Act, except to the extent
that a statement contained in the Prospectus or in any
other subsequently filed document which is incorporated or
deemed to be incorporated by reference modifies or
supersedes statements contained therein, at the time they
were filed with the Commission, complied in all material
respects with the requirements of the 1934 Act, and the
rules and regulations of the Commission thereunder (the
"1934 Act Regulations"), and, when read together and with
the other information in the Prospectus, at the time the
Registration Statement became effective and at all times
subsequent thereto up to the Closing Time, did not and
will not contain an untrue statement of a material fact
and did not omit and will not omit to state a material
fact required to be stated therein or necessary in order
to make the statements therein not misleading.
(c) The accountants who have reported upon the
audited consolidated financial statements incorporated by
reference in the Registration Statement are
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independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(d) This Agreement has been duly authorized,
executed and delivered by the Company.
(e) The consolidated financial statements
incorporated by reference in the Registration Statement
present fairly the financial position of the Company and
its consolidated subsidiaries as at the dates indicated
and the results of their operations for the periods
specified and have been prepared in conformity with
generally accepted accounting principles applied on a
consistent basis.
(f) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as described or otherwise incorporated
by reference therein, (i) there has been no material
adverse change in the condition, financial or otherwise,
of the Company and its subsidiaries, considered as one
enterprise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries,
considered as one enterprise, whether or not arising in
the ordinary course of business (excluding such change, if
any, caused by a decrease in the market price of gold,
silver, lead or zinc), (ii) there have been no
transactions material to the Company and its subsidiaries,
considered as one enterprise, entered into by the Company
or its subsidiaries, other than those in the ordinary
course of business and (iii) there has been no dividend or
distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(g) The Company has been duly incorporated and is
validly existing as a corporation in good standing under
the laws of the State of Delaware with corporate power and
authority to own, lease and operate its properties and to
conduct its business as described or incorporated by
reference in the Registration Statement and the Prospectus
and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each
jurisdiction in which its ownership or leasing of
properties or the conduct of its business requires such
qualification and in which the failure to so qualify could
have a material adverse effect on the condition, financial
or otherwise, of the Company and its subsidiaries,
considered as one enterprise or on its earnings, affairs
or business prospects.
(h) Each of the following subsidiaries of the
Company constitute a "significant subsidiary" as defined
in Rule 405 of Regulation C of the 1933 Act Regulations:
the Kentucky-Tennessee Clay Company (the "Significant
Subsidiaries"). Each Significant Subsidiary is a
corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its
incorporation with corporate power and authority under
such laws to own, lease and operate its properties and
conduct its business; and each Significant Subsidiary is
duly qualified to transact
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business as a foreign corporation and is in good standing
in each other jurisdiction in which it owns or leases
property of a nature, or transacts business of a type,
that would make such qualification necessary, except to
the extent that the failure to so qualify or be in good
standing would not have a material adverse effect on the
Company and its subsidiaries, considered as one
enterprise. All of the outstanding shares of capital
stock of each Significant Subsidiary have been duly
authorized and validly issued and are fully paid and non-
assessable and are owned by the Company directly or
through one or more subsidiaries, free and clear of any
pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind except as otherwise provided in a
security agreement (the "Security Agreement") of the type
contemplated in the Prospectus, which is proposed to be
entered into in connection with the further amendment of
the Credit Agreement dated as of August 30, 1994, as
amended on October 1, 1995, among the Company and certain
of its subsidiaries, and NationsBank of Texas, for itself
and as agent to the other banks thereto, if any.
(i) The Company had at the date indicated a duly
authorized, issued and outstanding capitalization as set
forth in the Prospectus under the captions "Description of
Common Stock" and "Current Capital Structure" (except for
subsequent issuances, if any, pursuant to reservations,
agreements or commitments referred to in the Registration
Statement and the Prospectus), the Shares conform to the
description thereof contained or incorporated by reference
in the Registration Statement and the Prospectus and such
description conforms to the rights set forth in the
instruments defining the same; the Shares to be sold by
the Company have been duly authorized and, when issued and
paid for in accordance with this Agreement, will be
validly issued, fully paid and non-assessable; no holder
thereof will be subject to personal liability by reason of
being such a holder; such Shares are not subject to the
preemptive rights of any stockholder of the Company; the
Shares (and Rights attached thereto (the "Rights"))
conform to all statements relating thereto contained or
incorporated by reference in the Registration Statement
and the Prospectus and, prior to the Closing Time, the
Shares will have been duly authorized for listing, subject
to official notice of issuance, on the NYSE; and all
corporate action required to be taken for the
authorization, issue and sale of such Shares has been
validly and sufficiently taken.
(j) Neither the Company nor any of its subsidiaries
is in violation of its charter or in default in the
performance or observance of any obligation, agreement,
covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it may be
bound or to which any of its properties may be subject,
except for such defaults that would not have a material
adverse effect on the condition (financial or otherwise),
earnings, affairs or business prospects of the Company and
its subsidiaries, considered as one enterprise; and the
execution and delivery by the Company of this Agreement
and the consummation of the transactions herein
contemplated will not conflict with or
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constitute a breach of, or default under, the charter or
by-laws of the Company or any Significant Subsidiary or
any bond, debenture, note or other evidence of
indebtedness or any material contract, indenture,
mortgage, loan agreement, lease or other instrument to
which the Company or a Significant Subsidiary is a party
or by which it may be bound or, to the best of the
Company's knowledge, any existing applicable law,
administrative regulation, or court decree.
(k) To the best of the Company's knowledge, no labor
disturbance by the employees of the Company exists or is
imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any mining
operation in which the Company has a material
participation interest or principal smelter which the
Company uses which might be expected to materially
adversely affect the conduct of the business, operations,
consolidated financial condition or consolidated income of
the Company and its subsidiaries, considered as one
enterprise.
(l) No authorization, approval, consent or license
of any government, governmental instrumentality or court,
domestic or foreign (other than under the 1933 Act, the
1933 Act Regulations and the securities or blue sky laws
of the various states), is required for the valid
authorization, issuance, sale and delivery of the Shares
and the consummation by the Company of the transactions
contemplated by this Agreement.
(m) Except as disclosed or incorporated by reference
in the Registration Statement or the Prospectus, there is
no action, suit or proceeding before or by any government,
governmental instrumentality or court, domestic or
foreign, now pending or, to the knowledge of the Company,
threatened against or affecting the Company or any
Significant Subsidiary that is required to be disclosed in
the Registration Statement or the Prospectus or which
might reasonably be expected to result in any material
adverse change in the condition (financial or otherwise),
earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one
enterprise, or might reasonably be expected to materially
and adversely affect the properties or assets of the
Company and its subsidiaries, considered as one
enterprise, or might reasonably be expected to materially
and adversely affect the consummation of this Agreement
and the transactions contemplated in this Agreement; the
only pending legal or governmental proceedings to which
the Company or any Significant Subsidiary is a party or of
which any of its property is the subject which are not
described in the Registration Statement or the Prospectus,
or incorporated by reference therein, including ordinary
routine litigation incidental to the business, are,
considered in the aggregate, not material to the Company
and its subsidiaries considered as one enterprise, and
there are no contracts or other documents of the Company
which would be required to be filed as exhibits to the
Registration Statement by the 1933 Act, the 1933 Act
Regulations, the 1934 Act or the 1934 Act Regulations
which have not been filed as exhibits thereto.
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(n) Except as described or incorporated by reference
in the Registration Statement or the Prospectus, the
Company and each Significant Subsidiary possesses those
certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies
or bodies necessary to own, lease and operate its
properties, as the Company currently operates such
properties, and conduct the business now operated by it,
the absence of which might result in a material adverse
change in the earnings, affairs, condition (financial or
otherwise), business or prospects of the Company and its
subsidiaries, considered as one enterprise, and the
Company has not received any notice of proceedings
relating to the revocation or modification of any such
certificate, authorizations or permit which, singly or in
the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially adversely affect the
conduct of the business, operations, financial condition
or income of the Company and its subsidiaries considered
as one enterprise.
(o) Except as disclosed or incorporated by reference
in the Registration Statement and the Prospectus, or
except as otherwise provided in the Security Agreement (if
any), the Company or a Significant Subsidiary has good and
marketable title to, or valid and enforceable leasehold
estates in or enforceable contractual rights in respect of
the Major Properties (as defined below) in each case free
and clear of all liens, encumbrances and defects other
than those which do not affect the value of such
properties, leasehold or contractual rights and do not
interfere with the use made, or proposed to be made
pursuant to duly authorized corporate action already taken
by the Company, of such properties, leaseholds or
contractual rights except as does not have a material
adverse effect on the condition (financial or otherwise),
earnings, affairs or business prospects of the Company and
its subsidiaries, considered as one enterprise. As used
herein the term "Major Properties" means all real and
personal property and all contractual rights (including,
but not limited to, rights to participate in profits)
described or referred to in the Registration Statement and
the Prospectus or used by or useful to the Company in
connection with the Lucky Friday mine, the American Girl/
Oro Xxxx gold project, the Greens Creek mine, the Grouse
Creek gold project, the Rosebud gold project, the La Choya
gold project, the Kentucky-Tennessee Clay Company, the K-T
Feldspar Corporation, the Colorado Aggregate Company of
New Mexico or Mountain West Products, Inc.
(p) The Company and its subsidiaries each owns or
possesses, or can acquire on reasonable terms, adequate
patents, patent licenses, trademarks, service marks and
trade names necessary to carry on its business as
presently conducted, and neither the Company nor any
subsidiary has received any notice of infringement of or
conflict with asserted rights of others with respect to
any patents, patent licenses, trademarks, service marks or
trade names that in the aggregate, if the subject of an
unfavorable decision, ruling or finding, could materially
adversely affect the condition (financial or otherwise),
earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one
enterprise.
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(q) Except as disclosed or incorporated by reference
in the Registration Statement and the Prospectus and
except as would not individually or in the aggregate have
a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered
as one enterprise, (i) the Company and its subsidiaries
are each in compliance with all applicable Environmental
Laws, (ii) the Company and its subsidiaries have all
permits, authorizations and approvals required under any
applicable Environmental Laws and are each in material
compliance with their requirements, (iii) there are no
pending or threatened Environmental Claims against the
Company or any of its subsidiaries and (iv) there are no
circumstances with respect to any property or operations
of the Company or its subsidiaries that could reasonably
be anticipated to form the basis of an Environmental Claim
against the Company or any of its subsidiaries.
For purposes of this Agreement, the following terms
shall have the following meanings: "Environmental Law"
means any United States (or other applicable
jurisdiction's) federal, state, local or municipal
statute, law, rule, regulation, ordinance, code, policy or
rule of common law and any judicial or administrative
interpretation thereof including any judicial or
administrative order, consent decree or judgment, relating
to the environment, health, safety or any chemical,
material or substance, exposure to which is prohibited,
limited or regulated by any governmental authority.
"Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or
violation, investigations or proceedings relating in any
way to any Environmental Law.
(r) There are no holders of securities of the
Company with currently exercisable registration rights to
have any securities held thereby included in the offering
contemplated by this Agreement, the Registration Statement
and the Prospectus.
(s) The Company has not taken and will not take,
directly or indirectly, any action designed to, or that
might be reasonably expected to, cause or result in
stabilization or manipulation of the price of the Common
Stock or the Shares.
Any certificate signed by any officer of the Company
and delivered to you or to your counsel shall be deemed a
representation and warranty by the Company to you as to the
matters covered thereby.
Section 2. Sale and Delivery of the Shares; Closing.
(a) On the basis of the representations and warranties
contained herein, and subject to the terms and conditions set
forth herein, the Company agrees to sell to you, and you agree
to purchase from the Company, at a purchase price of $7.70 a
share (the "Purchase Price"), the Initial Shares, and
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to the extent you exercise the option to purchase Option Shares
described above, if at all, the Option Shares.
(b) The Company understands that, as soon as you
deem advisable after this Agreement has been executed, you may
make a fixed price offering of the Shares at an initial public
offering price per Share (the "Public Offering Price") to be
set forth on the cover page of the Prospectus Supplement, in
which case, the difference between the Public Offering Price
and the Purchase Price shall constitute the underwriting
discount with respect to such offering. The Company further
understands that you may, in the alternative, sell Shares to
purchasers in one or more transactions (which may involve block
transactions) on the NYSE or otherwise or distribute Shares
from time to time in special offerings, exchange distributions
and/or secondary distributions pursuant to and in accordance
with the rules of the NYSE, in the over-the-counter market, in
negotiated transactions through the writings of options on the
Shares (whether such options are listed on an options exchange
or otherwise) or otherwise, or in a combination of such methods
at prevailing market prices or at negotiated prices. The
Company further understands that you may effect such
transactions by selling Shares to or through dealers, and such
dealers may receive compensation in the form of discounts,
concessions or commissions from you and/or the purchasers of
such Shares for whom they may act as agents or to whom they may
sell as principal.
(c) Payment of the Purchase Price and delivery of
certificates for the Initial Shares and Option Shares, if any,
shall be made at the offices of Wachtell, Lipton, Xxxxx & Xxxx,
00 X. 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other
place as shall be agreed upon by the Company and you, at 10:00
A.M. on January 26, 1996, or at such other time as you and the
Company shall determine (such date and time of payment and
delivery being herein called the "Closing Time"). Payment
shall be made to the Company by certified or official bank
check or checks in New York Clearing House funds payable to the
order of the Company, against delivery to you for your account
of certificates for the Shares to be purchased by you.
(d) Certificates for the Shares to be purchased by
you shall be in such denominations and registered in such names
as you may request in writing at least two full business days
before the Closing Time. The certificates for the Shares will
be made available in New York City for examination and
packaging by you not later than 10:00 A.M. on the business day
prior to the Closing Time.
Section 3. Covenants of the Company. The Company
covenants with you as follows:
(a) Immediately following the execution of this
Agreement, the Company will complete preparation of a
Prospectus Supplement that complies with the 1933 Act and
the 1933 Act Regulations and that sets forth the number of
Shares that you have agreed to purchase, the price at
which the Shares are to be purchased by you from the
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Company, any initial public offering price, any selling
concession and reallowance, and such other information as
you and the Company deem appropriate in connection with
the offering of the Shares. The Company will promptly
transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424 under the 1933
Act and will furnish to you, without charge, as many
copies of a Prospectus as you shall reasonably request.
(b) During the period when the Prospectus is
required by the 1933 Act to be delivered in connection
with sales of the Shares, the Company will notify you
immediately, and confirm the notice in writing, (i) of the
delivery to the Commission for filing pursuant to the
XXXXX system of any supplement to the Prospectus or any
document that would as a result thereof be incorporated by
reference in the Prospectus, (ii) of the receipt of any
comments from the Commission, (iii) of any request by the
Commission to amend the Registration Statement or
supplement the Prospectus or for additional information
relating thereto or to any document incorporated by
reference in the Prospectus and (iv) of the issuance by
the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any
order preventing or suspending the use of the Prospectus,
or of the suspension of the qualification of the Shares
for offering or sale in any jurisdiction, or of the
institution or threatening of any proceedings for any of
such purposes. The Company will use its best efforts to
prevent the issuance of any such stop order and, if any
such order is issued, to obtain the lifting thereof at the
earliest possible moment.
(c) The Company will give you notice of its
intention to file any amendment to the Registration
Statement (including any post-effective amendment) or any
supplement to the Prospectus (including documents deemed
to be incorporated by reference in the Prospectus) whether
pursuant to the 1933 Act or the 1934 Act, and of the
effectiveness of any such amendment, and will furnish you
with copies of any such amendment or supplement a
reasonable amount of time in advance of such proposed
filing or use, as the case may be, and will not file any
such amendment or supplement or use any such prospectus to
which you or your counsel shall reasonably object.
(d) The Company has furnished or will furnish to you
as many signed copies of the Registration Statement as
originally filed and of all amendments thereto, whether
filed before or after the Registration Statement becomes
effective, copies of all exhibits and documents filed
therewith (including documents incorporated by reference
into the Prospectus pursuant to Item 12 of Form S-3 under
the 1933 Act) and signed copies of all consents and
certificates of experts, as you may reasonably request.
(e) The Company will comply in all material respects
with the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations so as to permit
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the completion of the distribution of the Shares as
contemplated in this Agreement and in the Prospectus. If
at any time when a prospectus is required by the 1933 Act
to be delivered in connection with sales of the Shares any
event shall occur or condition exist as a result of which
it is necessary, in the opinion of your counsel or counsel
for the Company, to amend the Registration Statement or
amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a
material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in
the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in
the opinion of either such counsel, at any such time to
amend the Registration Statement or amend or supplement
the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission, subject to
Section 3(c) hereof, such amendment or supplement as may
be necessary to correct such untrue statement or omission
or to make the Registration Statement or the Prospectus
comply with such requirements.
(f) The Company will use its best efforts, in
cooperation with you, to qualify the Shares for offering
and sale under the applicable securities laws of such
states and other jurisdictions as you may designate and to
maintain such qualifications in effect for as long as may
be required for; provided, however, that the Company shall
not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is
not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it
is not otherwise so subject. The Company will file such
statements and reports as may be required by the laws of
each jurisdiction in which the Shares have been qualified
as above provided.
(g) The Company will make generally available to its
security holders as soon as practicable, but not later
than 90 days after the close of the period covered
thereby, an earnings statement of the Company (in form
complying with the provisions of Rule 158 of the 1933 Act
Regulations, which need not be certified by independent
public accountants unless required by the 1933 Act or the
1933 Act Regulations), covering (i) a period of 12 months
beginning after the effective date of the Registration
Statement and covering a period of 12 months beginning
after the effective date of any post-effective amendment
to the Registration Statement but not later than the first
day of the Company's fiscal quarter next following such
respective effective date and (ii) a period of 12 months
beginning after the date of this Agreement but not later
than the first day of the Company's fiscal quarter next
following the date of this Agreement.
(h) The Company will use the net proceeds received
by it from the sale of the Shares in the manner specified
in the Prospectus under the caption "Use of Proceeds".
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(i) The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act,
will file timely all documents required to be filed with
the Commission pursuant to Section 13 or 14 of the 1934
Act.
(j) For a period of two years after the Closing
Time, the Company will furnish to you copies of all annual
reports, quarterly reports and current reports filed with
the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar forms as may be designated by the Commission, and
such other documents, reports and information as shall be
furnished by the Company to its stockholders or security
holders generally.
(k) For a period of 90 days from the date hereof,
the Company will not, without your prior written consent,
directly or indirectly, sell, offer to sell, grant any
option for the sale of, or otherwise dispose of, any
Shares, Common Stock or securities convertible into Common
Stock, other than to you pursuant to this Agreement and
other than conversions of existing convertible securities,
exchanges of Common Stock for existing convertible
securities, exercises of any outstanding options or
warrants, grants of Common Stock or options pursuant to
plans described or incorporated by reference in the
Prospectus, and pursuant to the Rights.
(l) If applicable, the Company will comply with all
the provisions of Florida H.B. 1771, codified as Section
517.075 of the Florida Statutes, and all regulations
promulgated thereunder relating to issuers doing business
in Cuba.
(m) The Company will use its best efforts to effect
the listing of the Shares on the NYSE.
Section 4. Payment of Expenses. The Company will
pay and bear all costs and expenses incident to the performance
of its obligations under this Agreement, including (a) the
preparation, copying and filing of the Registration Statement
(including financial statements and exhibits), as originally
filed and as amended, the Prospectus and any amendments or
supplements thereto, and the cost of furnishing copies thereof
to you; (b) the copying and distribution of the Shares and the
Blue Sky Survey, if any; (c) the delivery of the Shares to you,
including any stock transfer taxes payable upon the sale of the
Shares to you; (d) the fees and disbursements of the Company's
counsel and accountants; (e) the qualification of the Shares
under the applicable securities laws in accordance with Section
3(f) and any filing for review of the offering with the
National Association of Securities Dealers, Inc., including
filing fees and fees and disbursements of your counsel in
connection therewith and in connection with the Blue Sky
Survey, if any; (f) the copying and delivery to you of copies
of the Prospectus and any amendments or supplements thereto;
and (g) the fees and expenses incurred in connection with the
listing on the NYSE of the Shares.
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If this Agreement is terminated by you in accordance
with the provisions of Section 5 or 9(a)(i), the Company shall
reimburse you for all of your out-of-pocket expenses, including
the fees and disbursements of your counsel.
Section 5. Conditions of Your Obligation. Your
obligation to purchase and pay for the Shares that you have
agreed to purchase pursuant to this Agreement is subject to the
accuracy of the representations and warranties of the Company
contained herein or in certificates of any officer of the
Company or any of its subsidiaries, to the performance by the
Company of its obligations hereunder, and to the following
further conditions:
(a) At the Closing Time, no stop order suspending
the effectiveness of the Registration Statement or any
post-effective amendment thereof shall have been issued
under the 1933 Act and no proceedings for that purpose
shall have been instituted or shall be pending or, to your
knowledge or the knowledge of the Company, shall be
contemplated by the Commission or any "Blue Sky" or
securities authority of any jurisdiction, and any request
on the part of the Commission or any "Blue Sky" or
securities authority of any jurisdiction for additional
information shall have been complied with to the
satisfaction of your counsel.
(b) At the Closing Time, you shall have received a
signed opinion of Xxxxxxx X. Xxxxx, General Counsel of the
Company, dated as of the Closing Time, in form and
substance satisfactory to your counsel, to the effect
that:
(i) The Company is a corporation duly
incorporated, validly existing and in good standing
under the laws of the State of Delaware with
corporate power and authority under such laws to own,
lease and operate its properties and conduct its
business as described or incorporated by reference in
the Registration Statement and the Prospectus;
(ii) The Company is duly qualified as a foreign
corporation to transact business and is in good
standing in each jurisdiction in which it owns or
leases property of a nature, or transacts business of
a type, that would make such qualification necessary,
except to the extent that the failure to so qualify
or be in good standing would not have a material
adverse effect on the Company and its subsidiaries,
considered as one enterprise;
(iii) Each Significant Subsidiary is a
corporation duly incorporated, validly existing and
in good standing under the laws of the jurisdiction
of its incorporation with corporate power and
authority under such laws to own, lease and operate
its properties and conduct its business;
(iv) Each Significant Subsidiary is duly
qualified to transact business as a foreign
corporation and is in good standing in each
jurisdiction in which it
13
owns or leases property of a nature, or transacts
business of a type, that would make such
qualification necessary, except to the extent that
the failure to so qualify or be in good standing
would not have a material adverse effect on the
Company and its subsidiaries, considered as one
enterprise;
(v) Such counsel does not know of any statutes
or regulations, or any pending or threatened legal or
governmental proceedings, required to be described or
incorporated by reference in the Registration
Statement and the Prospectus that are not described
or incorporated as required, nor of any contracts or
documents of a character required to be described or
referred to or incorporated in the Registration
Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not
described, referred to or incorporated or filed as
required;
(vi) To the knowledge of such counsel, except as
described in the Prospectus, no default exists in the
performance or observance of any material obligation,
agreement, covenant or condition contained in any
contract, indenture, loan agreement, note, lease or
other agreement or instrument that is described or
referred to in the Registration Statement or the
Prospectus or filed as an exhibit to the Registration
Statement;
(vii) The execution and delivery of this
Agreement, the issuance and delivery of the Shares,
the consummation by the Company of the transactions
contemplated in this Agreement and compliance by the
Company with the terms of this Agreement do not and
will not result in any violation of the charter or
by-laws of the Company or any of its subsidiaries,
and do not and will not conflict with, or result in a
breach of any of the terms or provisions of, or
constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its
subsidiaries under (A) any contract, indenture,
mortgage, loan agreement, note, lease or any other
agreement or instrument known to such counsel, to
which the Company or any of its subsidiaries is a
party or by which it may be bound or to which any of
its properties may be subject (except for such
conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a material adverse
effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of
the Company and its subsidiaries, considered as one
enterprise), (B) any existing applicable law, rule or
regulation (other than the securities or blue sky
laws of the various states, as to which such counsel
need express no opinion) which could have a material
adverse effect on the Company and its subsidiaries
considered as one enterprise, or (C) any judgment,
order or decree of any government, governmental
instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or
any of their respective properties
14
which could have a material adverse effect on the
Company and its subsidiaries considered as one
enterprise;
(viii) The authorized, issued and outstanding
capital stock of the Company is as set forth in the
Registration Statement and the Prospectus under the
headings "Description of Common Stock" and "Current
Capital Structure" (except for subsequent issuances,
if any, pursuant to reservations, employee benefit
plans, agreements, commitments or the exercise of
convertible securities referred to in the
Registration Statement and the Prospectus);
(ix) The Shares sold by the Company pursuant to
the provisions of this Agreement have been duly
authorized and validly issued and are fully paid and
non-assessable; no holder thereof is or will be
subject to personal liability by reason of being such
a holder; such Shares are not subject to the
preemptive rights of any stockholder of the Company,
and all corporate action required to be taken for the
authorization, issue and sale of such Shares has been
validly and sufficiently taken;
(x) All of the other outstanding shares of
capital stock of the Company have been duly
authorized and validly issued and are fully paid and
non-assessable;
(xi) All of the outstanding shares of capital
stock of each Significant Subsidiary have been duly
authorized and validly issued and are fully paid and
non-assessable; free and clear of any pledge, lien,
security interest, charge, claim, equity or
encumbrance of any kind except as provided in the
Security Agreement (if any); no holder thereof is
subject to personal liability by reason of being such
a holder and none of such shares was issued in
violation of the preemptive rights of any stockholder
of the subsidiaries; and
(xii) Without such counsel having made a search
of the title records with respect thereto, the
Company has good and marketable title to, or valid
and enforceable leasehold estates in, or enforceable
contractual rights in respect of, the Major
Properties, in each case free and clear of all liens,
encumbrances and defects other than those set forth
in the Security Agreement (if any) or referred to or
incorporated by reference in the Registration
Statement and the Prospectus and those which do not
materially affect the value of such property,
leaseholds or contractual rights and do not
materially interfere with the use made, or proposed
to be made pursuant to duly authorized corporate
action already taken by the Company, of such
property, leaseholds or contractual rights.
15
In giving such opinion, such counsel may rely, as to
all matters governed by the laws of jurisdictions other
than the law of the State of Idaho, the federal law of the
United States and the corporate law of the State of
Delaware, upon opinions of other counsel who shall be
counsel reasonably satisfactory to your counsel, in which
case the opinion shall state that they believe you and
they are entitled to so rely. Such counsel may also state
that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(c) At the Closing Time you shall have received a
signed opinion of Xxxxxxxx, Lipton, Xxxxx & Xxxx, special
counsel for the Company, dated as of the Closing Time, in
form and substance satisfactory to your counsel, to the
effect that:
(i) The Company is a corporation duly
incorporated, validly existing and in good standing
under the laws of the State of Delaware;
(ii) To such counsel's knowledge, there are no
material contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments
required to be described or referred to in the
Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement,
other than those described or referred to therein or
filed or incorporated by reference as exhibits
thereto, and the descriptions thereof or references
thereto are correct in all material respects;
(iii) Such counsel is not aware of any
authorization, approval, consent or order of any
agency, governmental authority or court (other than
under the 1933 Act, the 1933 Act Regulations, the
1934 Act and the 1934 Act Regulations and the
securities or blue sky laws of the various states)
that is required for the valid authorization,
issuance, sale and delivery of the Shares;
(iv) This Agreement has been duly authorized,
executed and delivered by the Company;
(v) The certificates for each outstanding share
of Common Stock also represent one Right per share;
and the outstanding Rights have been duly authorized
and validly issued under the Rights Agreement dated
May 19, 1986, as amended (the "Rights Agreement");
(vi) The sale and issuance of the Shares
pursuant to this Agreement have been duly authorized
and all necessary corporate action relating to the
issuance of the Shares has been taken;
16
(vii) The Shares conform in all material respects
as to legal matters to the description thereof in the
Registration Statement and the Prospectus;
(viii) The statements made in the Registration
Statement and the Prospectus under the caption
"Certain U.S. Federal Income Tax Considerations", to
the extent that they constitute matters of law or
legal conclusions, have been reviewed by such counsel
and fairly present the information disclosed therein
in all material respects;
(ix) Upon issuance and delivery of the Shares as
described in the Registration Statement and the
Prospectus, the Shares will be validly issued, fully
paid and non-assessable and the holders thereof will
not be subject to personal liability by reason of
being such holders;
(x) The Registration Statement and the
Prospectus, excluding the documents incorporated by
reference therein, and each amendment or supplement
thereto (except for the financial statements and
other financial or statistical data included therein
or omitted therefrom, as to which such counsel need
express no opinion), as of their respective effective
or issue dates, appear on their face to have been
appropriately responsive in all material respects to
the requirements of the 1933 Act and the 1933 Act
Regulations;
(xi) The documents incorporated by reference in
the Prospectus (except for the financial statements
and other financial or statistical data included
therein or omitted therefrom, as to which such
counsel need express no opinion), as of the dates
they were filed with the Commission, appear on their
face to comply as to form in all material respects to
the requirements of the 1934 Act and the 1934 Act
Regulations; and
(xii) Such counsel have participated in the
preparation of the Registration Statement and the
Prospectus and are familiar with the documents
incorporated by reference in the Registration
Statement and the Prospectus, and have also
participated in conferences with officers and other
representatives of the Company, representatives of
the independent public accountants for the Company,
and with your representatives and your counsel at
which the contents of the Registration Statement, the
Prospectus and related matters were discussed and,
although such counsel need not pass upon or assume
any responsibility for the accuracy, completeness or
fairness of the statements contained in the
Registration Statement or the Prospectus, and based
on the foregoing, no facts have come to the attention
of such counsel to lead them to believe (A) that the
Registration Statement or any amendment thereto
(except for the financial statements and other
financial or statistical data included therein or
omitted therefrom, as to which such counsel need
express no
17
opinion), on the original effective date of
Registration Statement or on the date any such
amendment became effective after the date of the
Agreement, contained an untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make
the statements therein not misleading or (B) that the
Prospectus or any amendment or supplement thereto
(except for the financial statements and other
financial or statistical data included therein or
omitted therefrom, as to which such counsel need
express no opinion), at the time the Prospectus
Supplement was issued, at the time any such amended
or supplemented prospectus was issued or at the
Closing Time, included or includes an untrue
statement of a material fact or omitted or omits 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.
Such opinion shall be to such further effect with respect
to other legal matters relating to this Agreement and the
sale of the Shares pursuant to this Agreement as your
counsel may reasonably request. In giving such opinion,
such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of
New York, the federal law of the United States and the
General Corporation Law of the State of Delaware, upon
opinions of other counsel, who shall be counsel
satisfactory to your counsel, in which case the opinion
shall state that they believe you and they are entitled to
so rely. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of
officers of the Company and of public officials.
(d) At the Closing Time, you shall have received the
favorable opinion of Xxxxxxxx & Sterling, your counsel,
dated as of the Closing Time, to the effect that the
opinions delivered pursuant to Sections 5(b) and 5(c)
appear on their face to be appropriately responsive to the
requirements of this Agreement except, specifying the
same, to the extent waived by you, and with respect to the
incorporation and legal existence of the Company, the
Shares sold by the Company, this Agreement, the
Registration Statement, the Prospectus, the documents
incorporated by reference and such other related matters
as you may require. In giving such opinion such counsel
may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York,
the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the
opinions of counsel satisfactory to you. Such counsel may
also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper,
upon certificates of officers of the Company and
certificates of public officials.
(e) At the Closing Time, (i) the Registration
Statement and the Prospectus, as they may then be amended
or supplemented, shall contain all statements that are
required to be stated therein under the 1933 Act and the
1933 Act Regulations and in all material respects shall
conform to the requirements of the 1933 Act and the 1933
18
Act Regulations and neither the Registration Statement nor
the Prospectus, as they may then be amended or supplemented,
shall 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, (ii) there shall not have been, since the
respective dates as of which information is given in the
Registration Statement, any material adverse change in the
condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise (excluding such
change, if any, caused by a decrease in the market price
of silver, gold, lead or zinc), whether or not arising in
the ordinary course of business, (iii) no action, suit or
proceeding shall be pending or, to the knowledge of the
Company, threatened against the Company or any subsidiary
that would be required to be set forth in the Registration
Statement or the Prospectus other than as set forth
therein and no proceedings shall be pending or, to the
knowledge of the Company, threatened against the Company
or any subsidiary before or by any government,
governmental instrumentality or court, domestic or
foreign, that could result in any material adverse change
in the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and
its subsidiaries, considered as one enterprise, other than
as set forth in the Registration Statement or the
Prospectus, (iv) the Company shall have complied with all
agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time and
(v) the other representations and warranties of the
Company set forth in Section 1 shall be accurate as though
expressly made at and as of the Closing Time. At the
Closing Time, you shall have received a certificate of the
President or a Vice President and the Secretary of the
Company, dated as of the Closing Time, to such effect.
(f) At the time that this Agreement is executed by
the Company, you shall have received from Coopers &
Xxxxxxx L.L.P. a letter, dated such date, in form and
substance satisfactory to you, confirming that they are
independent certified public accountants with respect to
the Company within the meaning of the 1933 Act and
applicable published 1933 Act Regulations, and stating in
effect that:
(i) in their opinion, the audited consolidated
financial statements incorporated by reference in the
Registration Statement and the Prospectus comply as to
form in all material respects with the applicable
accounting requirements of the 1933 Act and the
related published 1933 Act Regulations;
(ii) on the basis of procedures (but not an
examination in accordance with generally accepted
auditing standards) consisting of a reading of the
unaudited interim consolidated financial statements of
the Company for the three month periods ended March
31, 1995 and March 31, 1994, the three and six month
periods ended June 30, 1995 and June 30, 1994 and the
three and nine month periods ended September 30, 1995
and September 30, 1994 incorporated by reference in
the Registration Statement and the Prospectus
19
(collectively, the "10-Q Financials"), a reading of
the minutes of all meetings of the stockholders and
directors of the Company and its subsidiaries and the
Audit Committee of the Company's Board of Directors
since January 1, 1995, inquiries of certain officials
of the Company and its subsidiaries responsible for
financial and accounting matters and such other
inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused
them to believe that:
(A) the 10-Q Financials incorporated by
reference in the Registration Statement and the
Prospectus do not comply as to form in all
material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act
Regulations applicable to unaudited financial
statements included in Form 10-Q or any material
modifications should be made to the 10-Q
Financials incorporated by reference in the
Registration Statement and the Prospectus for
them to be in conformity with generally accepted
accounting principles;
(B) at November 30, 1995 and at a
specified date not more than five days prior to
the date of this Agreement, there was any change
in the Stockholders' equity of the Company or
any decrease in the working capital or the
consolidated assets of the Company or any
increase in the long-term debt of the Company
and its subsidiaries, in each case as compared
with amounts shown in the latest audited balance
sheet included or incorporated by reference in
the Registration Statement and the Prospectus,
except in each case for changes, decreases or
increases that the Registration Statement or the
Prospectus discloses have occurred or may occur;
or
(C) for the period from October 1, 1995 to
December 31, 1995 and for the period from
January 1, 1995 to a specified date not more
than five days prior to the date of this
Agreement, there was any decrease in revenues or
increase in the total per share amounts of
consolidated net loss, in each case as compared
with the comparable period in the preceding
year, except in each case for any decreases that
the Registration Statement or the Prospectus
discloses have occurred or may occur;
(iii) based upon the procedures set forth in
clause (ii) above and a reading of the Selected
Financial Data incorporated by reference in the
Registration Statement and the Prospectus, nothing
has come to their attention that gives them reason to
believe that the Selected Financial Data incorporated
by reference in the Registration Statement and the
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements
of
20
the 1933 Act and the 1933 Act Regulations or that the
information set forth therein is not fairly stated in
relation to the financial statements from which it
was derived or that the financial statements not
included or incorporated by reference in the
Registration Statement and the Prospectus from which
certain of such data were derived are not in
conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited financial
statements incorporated by reference in the
Registration Statement and the Prospectus; and
(iv) in addition to the procedures referred to
in clause (ii) above, they have performed other
specified procedures, not constituting an audit, with
respect to certain amounts, percentages, numerical
data and financial information appearing in the
Registration Statement and the Prospectus, which have
previously been specified by you and which shall be
specified in such letter, and have compared certain
of such items with, and have found such items to be
in agreement with, the accounting and financial
records of the Company.
(g) At the Closing Time, you shall have received
from Coopers & Xxxxxxx a letter, in form and substance
satisfactory to you and dated as of the Closing Time, to
the effect that they reaffirm the statements made in the
letter furnished pursuant to Section 5(f), except that the
specified date referred to shall be a date not more than
five days prior to the Closing Time.
(h) At the Closing Time, your counsel shall have
been furnished with all such documents, certificates and
opinions as they may reasonably request for the purpose of
enabling them to pass upon the issuance and sale of the
Shares as contemplated in this Agreement and the matters
referred to in Section 5(d) and in order to evidence the
accuracy and completeness of any of the representations,
warranties or statements of the Company, the performance
of any of the covenants of the Company, or the fulfillment
of any of the conditions herein contained; and all
proceedings taken by the Company at or prior to the
Closing Time in connection with the authorization,
issuance and sale of the Shares as contemplated in this
Agreement shall be satisfactory in form and substance to
you and to your counsel.
(i) The Shares shall have been duly authorized for
listing by the NYSE, subject to official notice of
issuance, no later than the Closing Time.
If any of the conditions specified in this Section 5
shall not have been fulfilled when and as required by this
Agreement, this Agreement may be terminated by you on notice to
the Company at any time at or prior to the Closing Time, and
such termination shall be without liability of any party to any
other party, except as provided in Section 4.
21
Notwithstanding any such termination, the provisions of
Sections 6 and 7 shall remain in effect.
Section 6. Indemnification. (a) The Company agrees
to indemnify and hold harmless you and each person, if any, who
controls you within the meaning of Section 15 of the 1933 Act
as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of
an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or
any amendment thereto), including all documents
incorporated therein by reference, or the omission or
alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements
therein not misleading or arising out of an untrue
statement or alleged untrue statement of a material fact
included in the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent
of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including fees and disbursements of counsel
chosen by you), reasonably incurred in investigating,
preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent
that any such expense is not paid under subparagraph (i)
or (ii) above;
provided, however, that this indemnity agreement does not apply
to any loss, liability, claim, damage or expense to the extent
arising out of an untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by
you expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or
supplement thereto).
(b) You agree to indemnify and hold harmless the
Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act,
against any and all loss, liability, claim, damage and expense
described in the indemnity agreement in
22
Section 6(a), as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written
information furnished to the Company by you expressly for use
in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice
to each indemnifying party of any action commenced against it
in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve it
from any liability which it may have otherwise than on account
of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of such action.
In no event shall the indemnifying party or parties be liable
for the fees and expenses of more than one counsel for all
indemnified parties in connection with any one action or
separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances.
Section 7. Contribution. In order to provide for
just and equitable contribution in circumstances under which
the indemnity provided for in Section 6 is for any reason held
to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company on the one
hand and you on the other hand shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnity incurred by the
Company and you, as incurred, in such proportions that (a) you
are responsible for that percentage that (i) in the case of a
fixed price offering, the underwriting discount appearing on
the cover page of the Prospectus Supplement bears to the Public
Offering Price appearing thereon, and (ii) in all other cases,
the difference between (A) the Purchase Price appearing on the
cover page of the Prospectus Supplement and (B) the mean price
per Share of all sales of the Shares by the Underwriter (the
"Mean Sales Price"), bears to the Mean Sales Price, and (b) the
Company is responsible for the balance; provided, however, that
no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section,
each person, if any, who controls you within the meaning of
Section 15 of the 1933 Act shall have the same rights to
contribution as you, and each director of the Company, each
officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company.
Section 8. Representations, Warranties and
Agreements to Survive Delivery. The representations,
warranties, indemnities, agreements and other statements of the
Company or its officers set forth in or made pursuant to this
Agreement will remain operative and in full force and effect
regardless of any investigation made by or on behalf of the
Company, you or any person who controls the Company or you
within the meaning of Section 15 of the 1933 Act and will
survive delivery of and payment for the Shares.
23
Section 9. Termination of Agreement. (a) You may
terminate this Agreement, by notice to the Company, at any time
at or prior to the Closing Time (i) if there has been, since
the date of this Agreement or since the respective dates as of
which information is given in the Registration Statement, any
material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of
the Company and its subsidiaries, considered as one enterprise,
whether or not arising in the ordinary course of business
(excluding such change, if any, caused by a decrease in the
market price of silver, gold, lead or zinc), or (ii) if there
has occurred any material adverse change in the financial
markets or any outbreak of hostilities or escalation thereof or
other calamity or crisis the effect of which is such as to make
it, in your judgment, impracticable to market the Shares or
enforce contracts for the sale of the Shares or (iii) if
trading in any securities of the Company has been suspended by
the Commission, or if trading generally on either the American
Stock Exchange or the NYSE or in the over-the-counter market
has been suspended, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities
have been required, by such exchange or by order of the
Commission or any other governmental authority or (iv) if a
banking moratorium has been declared by either federal, New
York or Idaho authorities.
(b) If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any
party to any other party, except to the extent provided in
Section 4. Notwithstanding any such termination, the
provisions of Sections 6, 7 and 8 shall remain in effect.
Section 10. 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 telecommunications. Notice to you shall be
directed to Salomon Brothers Inc, 0000 Xxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000, Attention: X. Xxxxxxxxx Xxxxxx, Director, with
a copy to Shearman & Sterling, Commerce Court West, Suite 4405,
P.O. Box 247, Toronto, Canada M5L 1E8, Attention: Xxxxx X.
Xxxxx, Esq.; notices to the Company shall be directed to it at
Hecla Mining Company, 0000 Xxxxxxx Xxxxx, Xxxxx x'Xxxxx, Xxxxx
00000-0000, Attention: Xxxxxxx X. Xxxxx, Vice President -
General Counsel and Secretary, with a copy to Xxxxxxxx, Lipton,
Xxxxx & Xxxx, 00 X. 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx X. Xxxx, Esq.
Section 11. Parties. This Agreement is made solely
for the benefit of you and the Company and, to the extent
expressed, any person who controls the Company or you within
the meaning of Section 15 of the 1933 Act, and the directors of
the Company, its officers who have signed the Registration
Statement, and their respective executors, administrators,
successors and assigns and no other person shall acquire or
have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, as
such purchaser, from you of the Shares.
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Section 12. Governing Law and Time. This Agreement
shall be governed by the laws of the State of New York.
Specified times of the day refer to New York City time.
Section 13. Counterparts. This Agreement may be
executed in one or more counterparts and when a counterpart has
been executed by each party, all such counterparts taken
together shall constitute one and the same agreement.
[Signature Page Follows]
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If the foregoing is in accordance with your
understanding, please sign and return to us a counterpart
hereof, whereupon this instrument will become a binding
agreement among the Company and you in accordance with its
terms.
Very truly yours,
HECLA MINING COMPANY
By /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Vice President -- Finance
Confirmed and accepted as of
the date first above written:
SALOMON BROTHERS INC
By /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
