EXHIBIT 10(a)
$125,000,000
Coeur d'Xxxxx Xxxxx Corporation
7 1/4% Convertible Subordinated Debentures due 2005
PURCHASE AGREEMENT
October 7, 1997
Lazard Freres & Co. LLC
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
SECTION 1. INTRODUCTORY. The Coeur d'Xxxxx Xxxxx Corporation, an Idaho
corporation (the "Company"), proposes to issue and sell to you (the
"Purchaser") an aggregate of $125,000,000 aggregate principal amount of 7 1/4%
Convertible Subordinated Debentures due 2005 (the "Firm Debentures") to be
issued under an indenture dated as of October 14, 1997 (the "Indenture"),
between the Company and Bankers Trust Company, as trustee (the "Trustee"). The
Company also proposes to sell to the Purchaser, upon the terms and conditions
set forth in Section 3 hereof, up to an additional $18,750,000 aggregate
principal amount of its 7 1/4% Convertible Subordinated Debentures due 2005
(the "Optional Debentures"). The Firm Debentures and the Optional Debentures
are convertible into shares of common stock, par value $1.00 per share
("Common Stock"), of the Company, at a conversion price of $17.45 per share of
Common Stock (which price is subject to adjustment in certain events as
described in the Indenture). The Firm Debentures and the Optional Debentures
are hereinafter sometimes collectively referred to as the "Securities".
The Purchaser and other holders (including subsequent transferees) of
Securities will be entitled to the benefits of the registration rights
agreement, to be dated as of the Closing Date (as defined below) (the
"Registration Rights Agreement") between the Company and the Purchaser, in the
form attached hereto as Exhibit B. Pursuant to the Registration Rights
Agreement, the Company will agree to file with the United States Securities
and Exchange Commission (the "Commission") under the circumstances set forth
therein a shelf registration statement pursuant to Rule 415 under the
Securities Act relating to the resale of (i) such Securities and (ii) the
shares of Common Stock initially issuable upon conversion of the Securities by
holders thereof, and to use its best efforts to cause such shelf registration
statement to be declared effective.
The Company hereby agrees with the Purchaser as follows:
SECTION 2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company represents and warrants to, and agrees with, the Purchaser that:
(a) A preliminary offering circular, issued October 3, 1997 (the
"Preliminary Offering Circular") and an offering circular, dated October 7,
1997 (the "Offering Circular", in each case including the documents
incorporated therein by reference as described below, have been prepared in
connection with the offering of the Securities and shares of Common Stock
issuable upon conversion thereof. Any reference to the Preliminary Offering
Circular or the Offering Circular shall be deemed to refer to and include
the Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1996 and the Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1997, and June 30, 1997, respectively, each having been
filed with the Commission pursuant to the United States Securities Exchange
Act of 1934, as amended (the "Exchange Act") on or prior to the date of the
Preliminary Offering Circular or the Offering Circular, as the case may be,
and any reference to the Preliminary Offering Circular or the Offering
Circular, as the case may be, as amended or supplemented, as of any
specified date, shall be deemed to include (i) any documents filed with the
Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act
after the date of the
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Preliminary Offering Circular or the Offering Circular, as the case may be,
and prior to such specified date and (ii) any Additional Issuer Information
(as defined in Section 5(d)) furnished by the Company prior to the
completion of the distribution of the Securities; and all documents filed
under the Exchange Act and so deemed to be included in the Preliminary
Offering Circular or the Offering Circular, as the case may be, or any
amendment or supplement thereto are hereinafter called the "Exchange Act
Reports". The Exchange Act Reports, when they were or are filed with the
Commission, conformed or will conform in all material respects to the
applicable requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder. The Preliminary Offering Circular
or the Offering Circular and any amendments or supplements thereto and the
Exchange Act Reports did not and will not, as of their respective dates,
contain an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by the Purchaser expressly
for use therein.
(b) When the Securities are issued and delivered pursuant to this
Agreement, the Securities will not be of the same class (within the meaning
of Rule 144A under the United States Securities Act of 1933, as amended
(the "Securities Act")), as securities which are listed on a national
securities exchange registered under Section 6 of the Exchange Act or
quoted in a U.S. automated inter-dealer quotation system.
(c) The Company is not, and after giving effect to the offering and sale
of the Securities, will not be required to be registered or regulated as an
"investment company", within the meaning of the United States Investment
Company Act of 1940, as amended (the "Investment Company Act").
(d) Within the preceding six months, neither the Company nor any other
person acting on behalf of the Company has offered or sold to any person
any Securities, or any securities of the same or a similar class as the
Securities,
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other than Securities offered or sold to the Purchasers hereunder. The
Company will take reasonable precautions designed to insure that any offer
or sale, direct or indirect, in the United States or to any U.S. person (as
defined in Rule 902 under the Securities Act) of any Securities or any
substantially similar security issued by the Company, within six months
subsequent to the date on which the distribution of the Securities has been
completed (as notified to the Company by Lazard Freres & Co. LLC), is made
under restrictions and other circumstances reasonably designed not to
affect the status of the offer and sale of the Securities in the United
States and to U.S. persons contemplated by this Agreement as transactions
exempt from the registration provisions of the Securities Act.
SECTION 3. PURCHASE, SALE AND DELIVERY OF SECURITIES. On the basis of the
representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and the Purchaser agree
that the Purchaser will purchase from the Company at the purchase price of 97%
of the principal amount thereof the principal amount of Firm Debentures set
forth opposite such Purchaser's name in Schedule I hereto.
The Company hereby agrees to issue and sell to the Purchaser and, on the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Purchaser shall have
the right to purchase from the Company, pursuant to an option to be exercised
in the 30-day period commencing on the date of this Agreement, up to
$18,750,000 aggregate principal amount of Optional Debentures at the purchase
price of 97% of the principal amount thereof. Optional Debentures may be
purchased solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Debentures.
The Company will deliver the Firm Debentures to you, against payment of
the purchase price therefor by wire transfer in immediately available funds to
an account specified in writing by the Company. Payment for the Firm
Debentures shall be made at the offices of Cravath, Swaine & Xxxxx at 10:00
A.M., New York Time, on October 14, 1997 or at such other place or time not
later than three full business days thereafter as you and the Company
determine (the "Initial Closing Date").
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The Company will deliver the Optional Debentures to be purchased to you,
against payment of the purchase price therefor by wire transfer in immediately
available funds to an account specified in writing by the Company, at the
offices of Cravath, Swaine & Xxxxx on such date and at such time (the "Option
Closing Date"), as shall be specified in the notice from Lazard Freres & Co.
LLC to the Company exercising the option to purchase Optional Debentures. The
Option Closing Date may be the same as the Initial Closing Date but shall in
no event be earlier than the Initial Closing Date nor earlier than two nor
later than ten business days after the giving of the notice hereinafter
referred to. Such notice may be given, by letter or by telecopy or other
facsimile transmission or by telephone (if subsequently confirmed in writing),
to the Company at any time within 30 days after the date of this Agreement.
The Option Closing Date may be varied by agreement between the Purchaser and
the Company. The Initial Closing Date and the Option Closing Date are herein
collectively referred to as the "Closing Date."
The certificates for all the Firm Debentures and the Optional Debentures
to be delivered will be in such denominations and registered in such names as
you request two full business days prior to the Initial Closing Date or the
Option Closing Date, as the case may be, and will be made available at the
office of Lazard Freres & Co. LLC, New York, New York or, upon your request,
through the facilities of The Depository Trust Company, for checking and
packaging at least one full business day prior to the Initial Closing Date or
the Option Closing Date, as the case may be.
SECTION 4. OFFERING BY PURCHASER. Upon the authorization by you of the
release of the Firm Debentures, the Purchaser proposes to offer the Firm
Debentures for sale upon the terms and conditions set forth in this Agreement
and the Offering Circular and the Purchaser hereby represents and warrants to,
and agrees with the Company that:
(a) It will offer and sell the Securities only to: (i) persons who it
reasonably believes are "qualified institutional buyers") ("QIBS") within
the meaning of Rule 144A under the Securities Act in transactions meeting
the requirements of Rule 144A or (ii) upon the terms and conditions set
forth in Annex A to this Agreement;
(b) It is an Institutional Accredited Investor.
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SECTION 5. COVENANTS OF THE COMPANY. The Company covenants and agrees
with the Purchaser that:
(a) To prepare the Offering Circular in a form approved by you; to make
no amendment or any supplement to the Offering Circular which shall be
reasonably disapproved by you promptly after reasonable notice thereof; and
to furnish you with copies thereof.
(b) To furnish the Purchasers with 5 copies of the Offering Circular and
each amendment or supplement thereto signed by an authorized officer of the
Company with the independent accountants' report(s) in the Offering
Circular, and any amendment or supplement containing amendments to the
financial statements covered by such report(s), signed by the accountants,
and additional copies thereof in such quantities as you may from time to
time reasonably request, and if, at any time prior to the completion of the
distribution of the Securities, any event shall have occurred as a result
of which the Offering Circular as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Offering
Circular is delivered, not misleading, or, if for any other reason it shall
be necessary or desirable during such same period to amend or supplement
the Offering Circular, to notify you and upon your request to prepare and
furnish without charge to the Purchaser and to any dealer in securities as
many copies as you may from time to time reasonably request of an amended
Offering Circular or a supplement to the Offering Circular which will
correct such statement or omission or effect such compliance.
(c) Not to be or become, at any time prior to the expiration of two years
after the Time of Delivery, an open- end investment company, unit
investment trust, closed-end investment company or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act.
(d) At any time when the Company is not subject to Section 13 or 15(d) of
the Exchange Act, for the benefit of holders from time to time of
Securities, to furnish at its
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expense, upon request, to holders of Securities and the Common Stock
issuable upon conversion thereof and prospective purchasers of securities
information (the "Additional Issuer Information") satisfying the
requirements of subsection (d)(4)(i) of Rule 144A under the Securities Act.
(e) During the period of two years after the Time of Delivery (or such
shorter period following the latest date of original issuance of the
Securities after which resales of the Securities may be effected by
non-affiliates of the Company in reliance on paragraph (k) of Rule 144
under the Securities Act, or any successor provision thereto), the Company
will not, and will not permit any of its "affiliates" (as defined in Rule
144 under the Securities Act) to, resell any of the Securities which
constitute "restricted securities" under Rule 144 that have been reacquired
by any of them.
(f) Until such time as any Security or any Common Stock issuable upon
conversion thereof is registered under the Securities Act pursuant to the
Registration Rights Agreement and transferred pursuant to such
registration, to include a legend on the Securities and the Common Stock
issuable upon the conversion thereof to the effect set forth under "Notice
to Investors" in the Offering Circular.
(g) The Company will take such action as you may reasonably request, in
cooperation with you, to qualify the Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions of
the United States as you may designate, and will maintain such
qualifications in effect for as long as may be required for the
distribution of the Securities. The Company will file such statements and
reports as may be required by the laws of each jurisdiction in which the
Securities have been qualified as above provided.
(h) During the period beginning from the date hereof and continuing to
the date 90 days after the date of the Offering Circular, the Company will
not offer, sell, contract to sell or otherwise dispose of, (i) any shares
of Common Stock or other capital stock of the Company or any securities
convertible into or exercisable or exchangeable
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for its Common Stock or other capital stock, other than (A) the Securities,
(B) Common Stock to be issued upon conversion of the Securities, (C) Common
Stock (or options or rights to purchase the same) which may be issued or
granted in connection with existing employee or director benefit or
compensation plans, (D) Common Stock issued upon conversion, exchange or
exercise of securities outstanding on the date hereof or (E) Common Stock
issued in connection with a business combination transaction approved by
the Company's shareholders or (ii) any debt securities of, or guaranteed
by, the Company, in each case without your prior written consent.
(i) Between the date hereof and the Closing Date, the Company will not do
or authorize any act or thing which would result in an adjustment of the
conversion price of the Securities.
(j) The Company will reserve and keep available at all times, free of
pre-emptive rights, the full number of shares of Common Stock issuable upon
conversion of the Securities.
(k) The Company will use its good faith efforts to list, subject to notice
of issuance and passage of appropriate time periods, the shares of Common
Stock issuable upon conversion of the Securities on the New York and
Pacific Stock Exchanges.
(l) To use its best efforts to cause the Securities to be eligible for the
PORTAL trading system of the National Association of Securities Dealers,
Inc.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE PURCHASER. The
obligations of the Purchaser to purchase and pay for the Securities on the
Initial Closing Date will be subject to the accuracy of the representations
and warranties on the part of the Company herein as of the date hereof and as
of the Initial Closing Date with the same force and effect as if made as of
that date, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of their obligations hereunder and to the following additional
conditions precedent:
(a) You shall not have advised the Company that the Offering Circular, or
any amendment or supplement thereto,
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contains any untrue statement of fact or omits to state any fact which, you
have concluded, is material and in the case of an omission is required to
be stated therein or is neces sary to make the statements therein not
misleading.
(b) You shall have received a favorable opinion of Freedman, Levy, Xxxxx
& Xxxxxxx, counsel for the Company, dated the Initial Closing Date, to the
effect that:
(i) Each of the Company, Coeur Alaska, Inc., Coeur Rochester, Inc.,
CDE Chilean Mining Corporation, Xxxxxxxx Mining Corporation, Coeur New
Zealand, Inc., and Silver Valley Resources Corporation (individually a
"Subsidiary" and collectively the "Subsidiaries") has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or organized,
with full corporate power and authority to own its properties and conduct
its business as described in the Offering Circular, and is duly qualified
to do business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification wherein it
owns or leases material prop erties or conducts material business.
(ii) All the outstanding shares of capital stock of each Subsidiary
have been duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Offering
Circular, all outstanding shares of capital stock of the Subsidiaries are
owned by the Company either directly or through wholly owned subsidiaries
free and clear of any perfected security interest and, to the knowledge
of such counsel, after due inquiry, any other security interests, claims,
liens or encumbrances.
(iii) This Agreement and the Registration Rights Agreement have been
duly authorized, executed and delivered by the Company.
(iv) The Securities and the capital stock of the Company conform in
all material respects to the description thereof contained in the
Offering Circular; the Indenture has been duly authorized, executed and
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delivered by the Company and the Trustee, and constitutes a legal, valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms (subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
affecting creditors' rights generally from time to time in effect, and
subject, as to enforceability, to general principles of equity,
regardless of whether such enforceability is considered in a proceeding
in law or at equity); and the Securities have been duly authorized, and
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Purchaser pursuant to this
Agreement, the Securities will constitute the legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture
enforceable against the Company in accordance with their terms (subject
to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws affecting creditors' rights
generally from time to time in effect, and subject, as to enforceability,
to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in law or at equity).
(v) The shares of Common Stock initially issuable upon conversion of
the Securities have been duly and validly authorized and reserved for
issuance upon such conversion and, when issued upon conversion, will be
validly issued, fully paid and nonassessable.
(vi) Such counsel has no reason to believe that the Offering Circular
includes any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(vii) The statements set forth in the Offering Circular under the
headings "Description of the Debentures" and, "Description of Capital
Stock", insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein fairly present the
information called for with
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respect to such legal matters, documents and proceedings.
(viii) No consent, approval, authorization, order, filing,
registration or qualification of or with any court or governmental
authority or agency is required for the issue and sale of the Securities
or the consummation of the transactions contemplated by this Agreement,
except such as may be required and have been obtained under the Act and
such as may be required under state securities or Blue Sky laws in
connection with the distribution of the Securities by the Purchaser; and,
the issue and sale of the Securities, the execution and delivery of the
Indenture, this Agreement and the Registration Rights Agreement by the
Company and the consummation of the transactions contemplated herein and
therein will not conflict with or constitute a breach of, or default
under any contract, indenture, mortgage, loan agreement, note, lease or
other instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, nor
will such action result in any violation of the provisions of the charter
or by-laws of the Company, or any law, administrative regulation or
administrative or court decree or order applicable to the Company or any
of its subsidiaries.
(ix) To the best knowledge of such counsel and except as set forth in
the Offering Circular, there is no pending or threatened action, suit or
proceeding before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its subsidiaries which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position, stockholders' equity
or results of operation of the Company and its subsidiaries, taken as a
whole.
(x) The Exchange Act Reports and any other documents incorporated by
reference in the Offering Circular as amended or supplemented (other than
the financial statements and related schedules therein, as to which such
counsel need express no opinion), when
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they were filed with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act, and the rules and
regulations of the Commission thereunder; and such counsel has no reason
to believe that any of such documents, when they were so filed, contained
an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such documents were so
filed, not misleading.
(xi) Assuming (i) the accuracy of, and compliance with, the
representations, warranties and covenants by the Company in Sections
2(b), 2(d), 2(e), 5(d), 5(e) and 5(f) and by you contained in Section 3
and Annex A of this Agreement, (ii) the compliance by you with the
offering and transfer procedures and restrictions described in the
Offering Circular and the Purchase Agreement and (iii) the accuracy of,
and compliance with, the representations, warranties and covenants of
each of the purchasers to whom you initially resell the Securities as
specified in the Offering Circular, no registration of the Securities
under the Securities Act, and no qualification of the Indenture under the
TIA with respect thereto, is required for the offer and sale by the
Company and the offer and initial resale of the Securities by the
Purchasers in the manner contemplated by this Agreement; PROVIDED,
HOWEVER, we express no opinion as to any subsequent resale of the
Securities.
(xii) The Company is not required to be registered or regulated as an
"investment company" within the meaning of the Investment Company Act.
In rendering such opinion, such counsel may rely (x) as to matters involving
the application of laws of any jurisdiction other than the State of Idaho or
the United States, to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel of good standing whom they believe
to be reliable and who are satisfactory to counsel for the Purchaser and (y)
as to matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. References to the
Offering Circular in this paragraph (c) include any supplements thereto at the
Closing Date.
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(c) You shall have received from Cravath, Swaine & Xxxxx, counsel for the
Purchaser, an opinion, dated the Initial Closing Date, with respect to such
matters as you may reasonably request.
(d) You shall have received from the President or any Senior Vice
President and a principal financial or accounting officer of the Company a
certificate, dated the Initial Closing Date, in which such officers, to the
best of their knowledge and after reasonable investigation, shall state (i)
such officers have carefully examined the Offering Circular, (ii) in their
opinion, as of its date, the Offering Circular did not include any untrue
statement of a material fact and did not omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading and since such date, no event
has occurred which should have been set forth in a supplement or amendment
to the Offering Circular, (iii) that there has not been, since the
respective dates as of which information is given in the Offering Circular,
any material adverse change in the condition, financial or otherwise,
earnings, business or prospects of the Company and its subsidiaries
considered as a whole, whether or not arising in the ordinary course of
business and (iv) the representations and warranties of the Company
contained in Section 2 are true and correct with the same force and effect
as though made on and as of the Initial Closing Date and the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Initial Closing Date.
(e) You shall have received from Ernst & Young, independent auditors, two
letters, the first dated the date of this Agreement and the other dated
such Initial Closing Date, addressed to the Purchaser, substantially in the
form of Annex B hereto with such variations as are reasonably acceptable to
you.
(f) At the Initial Closing Date counsel for the Purchaser shall have been
furnished with such further information, other documents and opinions as
they may reasonably require.
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(g) The Common Stock issuable upon conversion of the Securities shall
have been duly listed, subject to notice of issuance, on the New York and
Pacific Stock Exchanges.
(h) Subsequent to the execution and delivery of this Agreement and prior
to the Closing Date, there shall not have been any downgrading, nor shall
any notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction of
the possible change, in the rating accorded any of the Company's securities
(including the Securities) by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2) under
the Act.
The several obligations of the Purchaser to purchase the Optional
Debentures hereunder are subject to (i) the accuracy of and compliance with
the representations and warranties of the Sellers contained herein on and as
of the Option Closing Date, (ii) satisfaction on and as of the Option Closing
Date of the conditions set forth in subsections (a) to (i) of this Section 6
inclusive (and for purposes thereof each reference therein to the Initial
Closing Date shall be deemed to refer to the Option Closing Date) and (iii)
the absence of circumstances on or prior to the Option Closing Date which
would permit termination of this Agreement pursuant to Section 10.
SECTION 7. PAYMENT OF EXPENSES. The Company will pay all costs, expenses,
fees, disbursements and taxes incident to (i) the preparation by the Company,
printing and distribution of the Preliminary Offering Circular, the Offering
Circular and all amendments and supplements to either of them, (ii) the
printing, reproduction and distribution of this Agreement, the Registration
Rights Agreement, and all other underwriting and selling group documents by
mail, telex or other means, (iii) the issuance by the Company of the
Securities, (iv), if required, the registration or qualification of the
Securities for offer and sale under the securities or Blue Sky laws of the
several states and the preparation, printing and distribution of Preliminary
and Supplemental Blue Sky Memoranda and Legal Investment Survey (including the
reasonable fees and disbursements of your counsel relating to the foregoing),
(v) fees and expenses, if any, incurred in connection with the listing of the
Securities or the Common Stock issuable upon conversion of the Securities on
any stock exchange, (vi) filings and clearance with the National
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Association of Securities Dealers, Inc. in connection with the offering, (vii)
the fees and expenses of the Registrar and Transfer Agent for the Securities
and its counsel and (viii) the performance by the Company of its other
obligations under this Agreement.
If the sale of the Securities provided for herein is not consummated
because of the failure to satisfy any condition to the obligations of the
Purchaser set forth in Section 6 hereof, because of any termination pursuant
to Section 10 hereof or because of any refusal, failure or inability of the
Company to perform any agreement herein or comply with any provision hereof
other than by reason of a default by the Purchaser, the Company shall
reimburse you for all of your out-of-pocket expenses incurred in connection
with marketing and preparing for the offering of the Securities, including the
reasonable fees and disbursements of counsel for the Purchaser.
SECTION 8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless the Purchaser and
each person, if any, who controls the Purchaser within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (or actions in respect
thereof) (including, without limiting the foregoing, the reasonable legal and
other expenses incurred in connection with investigating or defending or
preparing to defend or appearing as a third party witness in connection with
any such loss, claim, damage, liability or action, as such expenses are
incurred) arising out of or based on any untrue statement or alleged untrue
statement of a material fact contained in the Offering Circular or any
Preliminary Offering Circular, or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or expenses are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon the
following information furnished to the Company by you in (i) the last
paragraph of text on the cover page of the Offering Circular concerning the
terms of the offering by the Purchaser, (ii) the first paragraph on page 3 of
the Offering Circular concerning over-allotment and stabilization by the
Purchaser and (iii) the third paragraph of text under the caption "Plan of
Distribution" in the Offering Circular concerning the terms of
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the offering by the Purchaser (all of the foregoing the "Purchaser's
Information"). This indemnity agreement will be in addition to any liability
which the Company may otherwise have to the persons referred to above in this
Section 8(a).
(b) The Purchaser agrees to indemnify and hold harmless the Company, the
officers and directors of the Company and each person, if any, who controls
the Company within the meaning of either Section 15 of the Act or Section 20
of the Exchange Act from and against any and all losses, claims, damages and
liabilities (or actions in respect thereof) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Offering Circular
or any Preliminary Offering Circular, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only with
reference to the Purchaser's Information. This indemnity agreement will be in
addition to any liability which the Purchaser may otherwise have to the
persons referred to above in this Section 8(b).
(c) In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (hereinafter called the indemnified
party) shall promptly notify the person against whom such indemnity may be
sought (hereinafter called the indemnifying party) in writing; however, the
omission to so notify the indemnifying party shall relieve the indemnifying
party from liability only to the extent prejudiced thereby. The indemnifying
party, upon request of the indemnified party, shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others that the
indemnifying party may designate and shall pay the fees and disbursements of
such counsel related to such proceeding. In any such action or proceeding any
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual
16
or potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (a) the reasonable fees
and expenses of more than one separate firm (in addition to any local counsel)
for the Purchaser and all persons, if any, who control the Purchaser within
the meaning of either Section 15 of the Act or Section 20 of the Exchange Act,
(b) the reasonable fees and expenses of more than one separate firm (in
addition to any local counsel) for the Company, its directors, and each
person, if any, who controls the Company within the meaning of either such
Section of the Act, and that all fees and expenses to be paid pursuant to each
of clauses (a) and (b) of this sentence shall be reimbursed as they are
incurred. In the case of any such separate firm for the Purchaser and such
control persons of the Purchaser, such firm shall be designated in writing by
Lazard Freres & Co. LLC. In the case of any such separate firm for the
Company, and such directors, officers and control persons of the Company, such
firm shall be designated in writing by the Company.
(d) If the indemnification provided for in this Section 8 is insufficient
or unavailable to an indemnified party in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein,
then each indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities and expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Purchaser on the other from the offering of
the Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law or if the indemnified party shall have failed to
the prejudice of the indemnifying party to give the notice required by Section
8(c), in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and the Purchaser on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Purchaser on the other shall be deemed to be in the same proportions
as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commission received by the Purchaser, in each case as set
17
forth in the table on the cover page of the Offering Circular. The relative
fault of the Company on the one hand and the Purchaser on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or by the
Purchaser and the parties, relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) The Company and the Purchaser agree that it would not be just and
equitable if contribution pursuant to Section 8(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities (or actions in respect thereof)
referred to in the immediately preceding paragraph shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of Section 8(e), in no event shall the
Purchaser be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Purchaser has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in the
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, including indemnity and contribution agreements, shall remain
operative and in full force and effect, regardless of any termination of this
Agreement, or any investigation, or any statement as to the results thereof,
made by or on behalf of the Purchaser or any person controlling the Purchaser
or by or on behalf of the Company, its officers or directors or controlling
persons, and shall survive acceptance of and payment for Securities hereunder.
18
SECTION 10. TERMINATION. This Agreement may be terminated for any reason
at any time prior to the delivery of and payment for the Securities on the
Initial Closing Date or the Option Closing Date, as the case may be, by Lazard
Freres & Co. LLC upon the giving of written notice of such termination to the
Company, if prior to such time (i) there has been, since the respective dates
as of which information is given in the Offering Circular, any material
adverse change in the condition, financial or otherwise, earnings, business or
prospects of the Company and its subsidiaries considered as a whole, whether
or not arising in the ordinary course of business or (ii) there has occurred
any outbreak or escalation of hostilities or other calamity or crisis or
material change in existing national or international financial, political,
economic or securities market conditions, the effect of which is such as to
make it, in the judgment of Lazard Freres & Co. LLC, impracticable or
inadvisable to market the Securities in the manner contemplated in the
Offering Circular or enforce contracts for the sale of the Securities, or
(iii) trading of the Common Stock of the Company has been suspended by the New
York Stock Exchange, or the Commission, or trading generally on either the
American Stock Exchange or the New York Stock Exchange has been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said exchanges or by
order of the Commission or any other governmental authority, or a banking
moratorium has been declared by either Federal or New York authorities. In the
event of any such termination, the provisions of Section 7, the indemnity
agreement and contribution provisions set forth in Section 8, and the
provisions of Sections 9 and 13 shall remain in effect.
SECTION 11. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Purchaser shall be directed to you c/o Lazard Freres & Co. LLC, 00 Xxxxxxxxxxx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Syndicate Department; and notices to the
Company shall be directed to it at 000 Xxxxx Xxxxxx Xxxxx x'Xxxxx, Xxxxx
00000, telex no. (000) 000-0000, attention of the Secretary with a copy to the
Treasurer.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Company, the Purchaser, any controlling persons referred to
herein and their respective
19
successors and assigns. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person, firm or corporation
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. No purchaser of Securities from
the Purchaser shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
SECTION 14. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign this Agreement and return to us counterparts hereof.
Very truly yours,
COEUR D'XXXXX XXXXX CORPORATION,
By___________________________________
Name:
Title:
Confirmed and Accepted, as of the
date first above written:
LAZARD FRERES & CO. LLC.
Lazard Freres & Co. LLC
20
SCHEDULE I
Aggregate
Purchasers Principal Amount
---------- Of Securities
To Be Purchased
----------------
Lazard Freres & Co. LLC.................................... $125,000,000
---------------
Total................................................. $125,000,000
===============
ANNEX A
(1) The Securities have not been and will not be registered under the
Securities Act and may not be offered or sold within the United States or to,
or for the account or benefit of, U.S. persons except in accordance with
Regulation S under the Securities Act or pursuant to an exemption from the
registration requirements of the Securities Act. The Purchaser represents that
it has offered and sold the Securities, and will offer and sell the Securities
(i) as part of their distribution at any time and (ii) otherwise until 40 days
after the later of the commencement of the offering and the Time of Delivery,
only in accordance with Rule 903 of Regulation S or, Rule 144A under the
Securities Act. Accordingly, the Purchaser agrees that neither it, its
affiliates nor any persons acting on its or their behalf has engaged or will
engage in any directed selling efforts with respect to the Securities, and it
and they have complied and will comply with the offering restrictions
requirement of Regulation S. The Purchaser agrees that, at or prior to
confirmation of sale of Securities (other than a sale pursuant to Rule 144A),
it will have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases Securities from it during
the restricted period a confirmation or notice to substantially the following
effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered and
sold within the United States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the offering and the
closing date, except in either case in accordance with Regulation S (or
Rule 144A if available) under the Securities Act. Terms used above have the
meaning given to them by Regulation S."
Terms used in this paragraph have the meanings given to them by Regulation S.
The Purchaser further agrees that it has not entered and will not enter
into any contractual arrangement with respect to the distribution or delivery
of the Securities, except with its affiliates or with the prior written
consent of the Company.
(2) Notwithstanding the foregoing, Securities in registered form may be
offered, sold and delivered by the Purchasers in the United States and to U.S.
persons pursuant to Section 3 of this Agreement without delivery of the
written statement required by paragraph (1) above.
(3) The Purchaser further represents and agrees that (i) it has not
offered or sold and prior to the date six months after the date of issue of
the Securities will not offer or sell any Securities to persons in the United
Kingdom except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995, (b) it
has complied, and will comply, with all applicable provisions of the Financial
Services Act of 1986 of Great Britain with respect to anything done by it in
relation to the Securities in, from or otherwise involving the United Kingdom,
and (c) it has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the issuance of
the Securities to a person who is of a kind described in Article 11(3) of the
Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order
1996 of Great Britain or is a person to whom the document may otherwise
lawfully be issued or passed on.
(4) The Purchaser agrees that it will not offer, sell or deliver any of
the Securities in any jurisdiction outside the United States except under
circumstances that will result in compliance with the applicable laws thereof,
and that it will take at its own expense whatever action is required to permit
its purchase and resale of the Securities in such jurisdictions. The Purchaser
understands that no action has been taken to permit a public offering in any
jurisdiction outside the United States where action would be required for such
purpose. The Purchaser agrees to cause any advertisement of the Securities to
be published in any newspaper or periodical or posted in any public place and
to issue any circular relating to the Securities, only at its own risk and
expense.
