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EXHIBIT 1(b)
PLACEMENT AGREEMENT
June 29, 2001
XXXXXXXXX XXXXXXXX, INC.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Ladies/Gentlemen:
1. General. Coeur d'Xxxxx Xxxxx Corporation, an Idaho corporation (the
"Company"), proposes to offer for cash (the "Cash Offer") up to $25,000,000
aggregate principal amount of 13 3/8% Convertible Senior Subordinated Notes due
December 31, 2003 (the "Exchange Notes") that are convertible into common stock,
par value $1.00 per share (the "Shares") of the Company to Holders who submit
some or all of their Debentures in the Exchange Offer (the "Exchange Offer").
In the event Holders submit indications of interest for more than
$25,000,000 aggregate principal amount in the Cash Offer, the additional
Exchange Notes will be allocated at the discretion of the Placement Agent (as
defined below) based on the amount of each Holder's indication in the Cash
Offer. The additional Exchange Notes issued in the Cash Offer are to be issued
pursuant to an Indenture, dated as of July __, 2001, as amended or modified from
time to time (the "Indenture"), between the Company, and The Bank of New York,
as trustee (the "Trustee"). Capitalized terms used herein without definition
shall have their respective meanings set forth in or pursuant to the
Registration Statement (as defined herein), notwithstanding that such terms as
used herein are not capitalized in the Registration Statement.
2. Appointment as Agent. By this Placement Agreement (the "Agreement"),
the Company hereby engages and appoints you as exclusive Placement Agent (the
"Placement Agent") for the Cash Offer and authorizes you to act as such in
connection with the Cash Offer.
(a) Subject to the terms and conditions stated herein, the Company
hereby agrees that the Exchange Notes to be issued in the Cash Offer will be
sold exclusively through the Placement Agent. Accordingly, the Company agrees
that it will not appoint any other agent to act on its behalf, or assist it in
the sale of additional Exchange Notes in the Cash Offer. The Placement Agent
agrees to use its best efforts to obtain purchases from the Holders for any or
all of the additional Exchange Notes at a price of $1,000 per additional
Exchange Note or any integral multiple of $1000.
(b) The Company shall not sell or approve the solicitation of offers
for the purchase of additional Exchange Notes in excess of the amount which
shall be authorized by the Company or in excess of the aggregate offering price
of the Exchange Notes registered pursuant to the Registration Statement.
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3. Registration Statement, Prospectus and Offering Materials.
(a) The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission"), under the Securities Act of 1933, as
amended (the "Securities Act"), the Trust Indenture Act of 1939, as amended (the
"TIA"), and applicable rules and regulations (the "Rules and Regulations") of
the Commission under both Acts, a registration statement on Form S-2 (File No.
333-63478), including a Prospectus, covering the registration of the offer and
sale of the Exchange Notes; the Shares issuable upon conversion of the Exchange
Notes; and the Shares that may be issued solely at the Company's option as
payment of interest on the Exchange Notes. The term "Registration Statement" as
used in this Agreement shall mean such registration statement, including
financial statements, schedules and exhibits, in the form in which it becomes
effective and, in the event of any amendment thereto or the filing of any
abbreviated registration statement pursuant to Rule 462(b) of the Rules and
Regulations relating thereto after the effective date of such registration
statement, shall also mean (from and after the effectiveness of such amendment
or the filing of such abbreviated registration statement) such registration
statement as so amended, together with any such abbreviated registration
statement. The term "Prospectus" as used in this Agreement shall mean the final
prospectus included in the Registration Statement. Notwithstanding the
foregoing, if any revised prospectus shall be provided to you by the Company for
use in connection with the Cash Offer that differs from the Prospectus referred
to in the immediately preceding sentence (whether or not such revised prospectus
is required to be filed with the Commission pursuant to Rule 424(b) of the Rules
and Regulations), the term "Prospectus" shall refer to such revised prospectus
from and after the time it is first provided to you for such use. Any reference
to the Registration Statement or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of
Form S-2 under the Securities Act, as of the date of the Registration Statement
or the Prospectus, as the case may be, and any reference to any amendment or
supplement to the Registration Statement or the Prospectus shall be deemed to
refer to and include any documents filed after such date under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and the Rules and
Regulations of the Commission thereunder, which, upon filing, are incorporated
by reference therein, as required by Item 12 of Form S-2. As used in this
Agreement, the term "Incorporated Documents" means the documents which at the
time are incorporated by reference in the Registration Statement, the Prospectus
or any amendment or supplement thereto. The terms "supplement" and "amendment"
or "supplemented" and "amended" as used herein with respect to the Prospectus
shall include all documents deemed to be incorporated by reference in the
Prospectus that are filed subsequent to the date of the Prospectus and prior to
the termination of the Exchange Cash Offer by the Company with the Commission
pursuant to the Exchange Act and the Rules and Regulations of the Commission
thereunder.
4. Use of the Prospectus and Registration Statement.
The Company authorizes the Placement Agent to use the Prospectus in
connection with the Cash Offer for such period of time as any such materials are
required by law to be delivered in connection therewith.
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5. Withdrawal. In the event that the Company (i) uses or permits the use
of, or files with the Commission or any other Agency, or any amendment or
supplement to the Registration Statement or the Prospectus, and such document
(a) has not been submitted to you previously for you and your counsel's comments
or (b) has been so submitted, and you or your counsel have made comments which
have not been reflected in a manner reasonably satisfactory to you or your
counsel, or (ii) breaches, in any material respect, any of its representations,
warranties, agreements or covenants herein, or (iii) amends or revises the Cash
Offer in a manner not reasonably acceptable to you, then you shall be entitled
to withdraw as Placement Agent in connection with the Cash Offer without any
liability or penalty to you and without loss of any right to indemnification or
contribution provided in Section 11 or to the payment of all fees and expenses
payable under Sections 6 and 7 below which have accrued to the date of such
withdrawal (it being agreed that in the event of any such withdrawal, for the
purpose of determining the fees payable to you pursuant to Section 6, the
aggregate principal amount of Debentures tendered pursuant to the Cash Offer as
of the close of business on the date of such withdrawal that are thereafter
acquired by the Company or any of its subsidiaries or affiliates pursuant to the
Cash Offer or otherwise shall be deemed to have been acquired as of the date of
such withdrawal).
6. Fees. The fee for the Cash Offer will be paid in either Exchange
Notes that are fungible with the Exchange Notes except in relation to resale
restrictions or in cash. If the fee is paid with Exchange Notes, it will be
6.25% of any new funds raised. If the fee is paid in cash, it will be 5.00% of
any new funds raised.
7. Expenses.
(a) The Company agrees that it will pay the costs and expenses
incident to the performance of the obligations hereunder whether or not any
Exchange Notes are issued in exchange for Debentures pursuant to the Exchange
Offer or any Exchange Notes are offered or sold pursuant to the Cash Offer,
including, without limitation (i) all costs and expenses incurred by dealers and
brokers (including your counsel), commercial banks, trust companies and nominees
for their customary mailing and handling expenses incurred in forwarding the
Prospectus to their customers, (ii) the filing fees and expenses, if any,
incurred with respect to any filing with the New York Stock Exchange (the
"NYSE"), (iii) all costs and expenses incident to the preparation, issuance,
execution and delivery of the Exchange Notes, (iv) all costs and expenses
incident to the preparation, printing and filing under the Securities Act of the
Registration Statement and the Prospectus (including, without limitation, in
each case all exhibits, amendments and supplements thereto), (v) all costs and
expenses incurred in connection with the registration or qualification of the
Exchange Notes issuable under the laws of such jurisdictions as the Placement
Agent may designate, if any (including, without limitation, reasonable fees of
counsel for the Placement Agent and its reasonable disbursements), (vi) all
costs and expenses incurred in connection with the printing (including word
processing and duplication costs) and delivery of the Prospectus and
Registration Statement (including, without limitation, any preliminary and
supplemental blue sky memoranda) including, without limitation, mailing and
shipping, (vii) all advertising expenses related to the Cash Offer and the fees
and expenses of the Exchange Agent and the Information Agent, (viii) all fees
and expenses incurred
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in marketing the Cash Offer, including but not limited to road show
presentations, if any, and (ix) the fees and disbursements of Xxxxx & Xxxxxxx,
counsel to the Company, and Xxxxxx Xxxxxxxx LLP and Ernst & Young LLP, auditors
to the Company. In addition, the Company agrees to reimburse the reasonable
out-of-pocket expenses of the Placement Agent in connection with the Cash Offer,
including, without limitation, the reasonable legal fees and expenses of the
Placement Agent's Counsel in connection with the Cash Offer.
8. Representations, Warranties and Agreements of the Company. The
Company represents and warrants to you, and agrees with you, that:
(a) The Registration Statement, including the Prospectus, has been
prepared by the Company in conformity with the requirements of the Securities
Act and the Rules and Regulations of the Commission thereunder and has been
filed with the Commission; such amendments to such Registration Statement and
Prospectus and such abbreviated registration statements pursuant to Rule 462(b)
of the Rules and Regulations as may have been required prior to the date hereof
have been similarly prepared and filed with the Commission; and the Company will
file such additional amendments to such Registration Statement and Prospectus
and such abbreviated registration statements as may hereafter be required.
Copies of such Registration Statement and Prospectus, including all amendments
thereto and all documents incorporated by reference therein, and of any
abbreviated registration statement pursuant to Rule 462(b) of the Rules and
Regulations have been or, if filed will be, delivered to you and your counsel.
(b) The Commission has not issued any order refusing or suspending
the effectiveness of the Registration Statement or preventing or suspending the
use of any Prospectus or instituted proceedings for that purpose; the
Prospectus, including the Registration Statement, complies and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act, the Exchange Act and the TIA, and the applicable Rules and
Regulations of the Commission thereunder; the Registration Statement, when it
became effective, did not contain and as amended or supplemented, if applicable,
will not contain, any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and neither the Prospectus nor the Registration
Statement contains, and, as amended or supplemented, if applicable, will contain
any untrue statement of a material fact or 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; provided, however, that none of the
representations and warranties contained in this subparagraph (b) shall apply to
information contained in or omitted from the Registration Statement or
Prospectus, or any amendment or supplement thereto, in reliance upon, and in
conformity with, written information relating to you furnished to the Company by
you specifically for use in the preparation thereof.
The Incorporated Documents heretofore filed, when they were filed
(or, if any amendment with respect to any such document was filed, when such
amendment was filed), conformed in all material respects with the requirements
of the Exchange Act and the Rules and Regulations of the Commission thereunder;
no such document when it was filed (or, if an amendment with respect to any such
document was filed, when such amendment was filed), contained any untrue
statement of a material fact or omitted to state a material fact required to be
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stated therein or necessary to make the statements therein not misleading; and
no such further amendment will contain any 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.
(c) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation with full power and authority (corporate and other) to own, lease
and operate its properties and conduct its business as described in the
Prospectus; the Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the ownership
or leasing of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified or be in good
standing would not have a Material Adverse Effect on the condition (financial or
otherwise), earnings, operations, business or business prospects of the Company
and its subsidiaries taken as a whole ("Material Adverse Effect").
(d) Each of the Company's significant subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation; has the corporate power to own,
lease and operate its properties and conduct its business as described in the
Prospectus; is qualified to do business as a foreign corporation and is in good
standing in each jurisdiction, if any, in which the ownership and leasing of its
properties or the conduct of its business requires such qualification, except
where the failure to be so qualified or be in good standing would not have a
Material Adverse Effect. Significant Subsidiaries is defined as in Rule 405
under the Securities Act and are referred to as "Significant Subsidiaries."
(e) All of the issued and outstanding shares of capital stock of
each of the Significant Subsidiaries have been duly authorized and validly
issued and are fully paid and nonassessable, and, have not been issued in
violation of or subject to any preemptive right, co-sale right, registration
right, right of first refusal or other similar right and, except as disclosed in
the Registration Statement, and Prospectus, are owned by the Company (except for
directors' qualifying shares), free and clear of any pledge, lien, security
interest, encumbrance, claim or equitable interest (other than such preemptive
rights or other rights to subscribe for or purchase securities as were fully
complied with or expressly waived or with respect to the violation of which the
right to make a claim is barred by the applicable statute of limitations).
(f) The Company has full legal right, power and authority to enter
into and perform its obligations under this Agreement, the Indenture and the
Exchange Notes and to consummate the Cash Offer and all other transactions
contemplated in the Cash Offer. The Exchange Notes and the Indenture have been
duly and validly authorized by all necessary corporate action by the Company,
and no other corporate proceedings by the Company are necessary to authorize
such actions. This Agreement has been duly authorized, executed and delivered by
the Company and is a legal, valid and binding agreement on the part of the
Company, enforceable in accordance with its terms, except as rights to
indemnification hereunder may be limited by applicable law and except as the
enforcement hereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles. The execution
and
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delivery by the Company of, and the performance by the Company of its
obligations under this Agreement, the Cash Offer, the issuance and delivery by
the Company of the Exchange Notes pursuant to the Cash Offer, the consummation
of the Cash Offer, and the fulfillment of the terms hereof and thereof, do not
and will not result in a material breach or violation of any of the terms and
provisions of, or constitute a default under, (i) any material bond, debenture,
note or other evidence of indebtedness, or under any material lease, contract,
indenture, mortgage, deed of trust, loan agreement, joint venture or other
material agreement or instrument to which the Company or any of its subsidiaries
is a party or by which it or any of its subsidiaries or their respective
properties may be bound, (ii) the charter or bylaws of the Company or any of its
subsidiaries, or (iii) any law, order, rule, regulation, writ, injunction,
judgment or decree of any court, government or governmental agency or body,
domestic or foreign, having jurisdiction over the Company, any of its
subsidiaries or over their respective properties except where any breach,
violation, or default described in (i), (ii) or (iii) would not have a Material
Adverse Effect. No consent, approval, authorization, permit or order or
qualification with any court, government or governmental agency or body,
domestic or foreign, having jurisdiction over the Company or any of its
subsidiaries or over their respective properties is required for the execution
and delivery of this Agreement, the Cash Offer, the issuance and delivery of the
Exchange Notes pursuant to the Cash Offer, and the consummation by the Company
or any of its subsidiaries of the transactions contemplated, except such as may
be required under the Securities Act, the Exchange Act, or under state or other
securities, or Blue Sky laws, all of which requirements have been satisfied
other than as contemplated by such agreements or except where such requirement
would not have a Material Adverse Effect on the execution and delivery of this
Agreement, the Cash Offer, the execution and delivery of the Indenture, the
issuance of the Exchange Notes or the consummation of the transactions
contemplated herein. Notwithstanding the foregoing, to the extent any of the
foregoing representations speak as to any of the Company's subsidiaries, such
representations shall be deemed to be made only as they relate to the execution
and delivery by the Company of, and the performance by the Company of its
obligations under, this Agreement, the Cash Offer, the issuance and delivery by
the Company of the Exchange Notes pursuant to the Cash Offer, and the
consummation of the Cash Offer.
(g) Except as disclosed in the Prospectus, there is not to the best
of the Company's knowledge, after due inquiry, any pending or threatened action,
suit, claim or proceeding against the Company, any of its subsidiaries or any of
their respective officers or any of their respective properties, assets or
rights before any court, government or governmental agency or body, domestic or
foreign, having jurisdiction over the Company or any of its subsidiaries or over
their respective officers or properties or otherwise which might prevent
consummation of the Cash Offer, the transactions contemplated hereby or thereby
that has not been accurately described in all material respects in the
Registration Statement or the Prospectus.
(h) To the best of the Company's knowledge, after due inquiry, the
Company is not in violation of any law, ordinance, administrative or
governmental rule or regulation or court decree applicable to it, is not in
violation of any term or condition of, and has not failed to obtain, any
license, claim, permit, franchise or other administrative or governmental
authorization necessary to the ownership or lease of its properties and assets
or to the conduct of its business as it is presently conducted, which violation,
or failure to obtain would, individually
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or in the aggregate, have a Material Adverse Effect, or which might, if
determined adversely to the Company, materially and adversely affect the
execution, delivery or performance by the Company of this Agreement. All such
licenses, claims, permits, franchises or other administrative or governmental
authorizations which are so required are, and on the Closing Date will be, valid
and subsisting and in good standing.
(i) There are no agreements, contracts, leases or documents of the
Company or any of its subsidiaries of a character required to be described or
referred to in the Registration Statement or the Prospectus or any Incorporated
Document or to be filed as an exhibit to the Registration Statement or any
Incorporated Document by the Securities Act or the Rules and Regulations
thereunder or by the Exchange Act or the Rules and Regulations of the Commission
thereunder which have not been accurately described in all material respects in
the Registration Statement or Prospectus or any Incorporated Document or filed
as exhibits to the Registration Statement or any Incorporated Document.
(j) All outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and nonassessable, have
been issued in compliance with all federal and state securities laws, were not
issued in violation of or subject to any preemptive rights or other rights to
subscribe for or purchase securities, and the authorized and outstanding capital
stock of the Company is as set forth in the Prospectus under the caption
"Capitalization" and conforms in all material respects to the statements
relating thereto contained in the Registration Statement and the Prospectus and
any Incorporated Document (and such statements correctly state the substance of
the instruments defining the capitalization of the Company); a sufficient number
of Shares to be issuable pursuant to the terms of the Exchange Notes have been
duly authorized for issuance and delivery and, when issued and delivered by the
Company in accordance with the terms of the Exchange Notes will be duly and
validly issued and fully paid and nonassessable, and will be free and clear of
any pledge, lien, security interest, encumbrance, claim or equitable interest;
and no preemptive right, cosale right, registration right, right of first
refusal or other similar right of shareholders exists with respect to any of the
Shares issuable pursuant to the terms of the Exchange Notes to be issued in the
Cash Offer or the issuance thereof other than those that have been expressly
waived prior to the date hereof and those that will automatically expire upon
and will not apply to the consummation of the transactions contemplated on or
before the Closing Date. No further approval or authorization of any
shareholder, the Board of Directors of the Company or others is required for the
issuance or transfer of the Shares issuable pursuant to the terms of the
Exchange Notes to be issued in the Cash Offer and except as may be required
under the Securities Act, the Exchange Act or under state or other securities or
Blue Sky laws.
(k) The Indenture has been or will be duly authorized by the
Company, has been filed, will be qualified under the TIA and, assuming due
authorization, execution and delivery of the Indenture by the Trustee, when
executed and delivered by the Company, will constitute a valid and binding
agreement of the Company, enforceable in accordance with its terms, except as
the enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws affecting
enforcement of creditors' rights generally, and (ii) general principles of
equity (regardless of whether
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enforceability is considered in a proceeding at law or in equity).
(l) The Exchange Notes to be issued pursuant to the Cash Offer have
been authorized, and assuming due authorization, execution and delivery of the
Indenture by the Trustee, when executed and authenticated in accordance with the
provisions of the Indenture and delivered in accordance with the terms of the
Cash Offer, will be entitled to the benefits of the Indenture and will be valid
and binding obligations of the Company enforceable in accordance with their
terms, except as the enforcement thereof may be limited by the (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other similar
laws affecting enforcement of creditors' rights generally, and (ii) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity). The Exchange Notes will conform in all material
respects to the description thereof contained in the Registration Statement and
Prospectus.
(m) The consolidated financial statements (including the related
notes) included or incorporated by reference in the Registration Statement and
the Prospectus (and any amendments or supplements thereto) present fairly, in
all material respects, the financial position of the Company, including the
results of operations and cash flows of the Company at the dates and for the
periods indicated, in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods indicated except as may
otherwise be stated therein. The interim consolidated financial statements
(including the related notes) included or incorporated by reference in the
Registration Statement and the Prospectus (and any amendments and supplements
thereto) have been prepared on a basis consistent with the audited consolidated
financial statements and include all adjustments, including normal recurring
adjustments necessary to present fairly the financial information therein. The
selected and summary consolidated financial and statistical data included in the
Registration Statement and the Prospectus (and any amendments or supplements
thereto) present fairly the information shown therein and have been compiled on
a basis consistent with the audited financial statements presented therein. No
financial statements or schedules, other than the consolidated financial
statements or schedules that are included in the Registration Statement and the
Prospectus (and any amendments or supplements thereto), are required to be
included therein.
(n) Except as disclosed in the Registration Statement and the
Prospectus, the Common Stock is registered pursuant to Section 12(b) of the
Exchange Act and has been listed on the NYSE, and the Company has taken no
action designed to terminate, or likely to have the effect of terminating, the
registration of the Common Stock under the Exchange Act or delisting the Common
Stock from the NYSE, nor has the Company received any notification that the
Commission or the NYSE is contemplating terminating such registration or
listing.
(o) All of the information provided by the Company in connection
with the preparation of its ore reserve reports was, at the time provided, and
continues to be as of the date hereof, true and correct in all material
respects. The Company believes that all of the assumptions made by its internal
Ore Reserve Committee and/or independent third parties in reaching the
conclusions stated in the ore reserve reports are reasonable and appropriate,
and that the production estimates of the Company which are based on the ore
reserve reports are
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reasonable and appropriate.
(p) The Company or each of its subsidiaries holds freehold title,
mining leases, mining claims or other conventional proprietary interests or
rights recognized in the jurisdiction in which each property described in the
Prospectus is located, in the ore bodies and mineral inventories described in
the Prospectus (and all properties respectively relating thereto) under valid,
subsisting and enforceable title documents, contracts, leases, licenses of
occupation, mining concessions, permits, or other recognized and enforceable
instruments and documents, sufficient to permit the Company or each of its
subsidiaries, as the case may be, to explore for, extract, exploit, remove,
process and refine the minerals relating thereto, except where the failure to so
hold such interests or rights would not have a Material Adverse Effect. In
addition, either the Company or each of its subsidiaries has all necessary
surface rights, water rights and rights in water, rights of way, licenses,
easements, ingress, egress and access rights, and all other necessary rights and
interests granting the Company or each of its subsidiaries, as the case may be,
the rights and ability to explore for, mine, extract, and remove the minerals
derived from the ore bodies and mineral inventories described in the Prospectus
and to transport for refinement or market or distribute the ore and metals
produced, all as referred to in the Prospectus, with only such exceptions as are
described in the Prospectus or as do not have a Material Adverse Effect. Each of
the aforementioned interests and rights is currently in good standing except for
those interests and claims which, if not kept in good standing, would not have a
Material Adverse Effect.
(q) Ernst & Young LLP, who has reported upon the fiscal year 1998
audited financial statements of the Company, and Xxxxxx Xxxxxxxx LLP, who has
reported upon the fiscal year 1999 and fiscal year 2000 audited financial
statements of the Company, are, and during the periods covered by the reports
were, independent of the Company as defined under the Securities Act.
(r) The Company has conducted, and intends in the future to conduct,
its affairs in such a manner as to ensure that it is not and will not become an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the "1940 Act"),
and the Rules and Regulations thereunder.
(s) The Company has not distributed and will not distribute prior to
the later of (i) the Closing Date, and (ii) completion of the distribution of
the additional Exchange Notes pursuant to the Cash Offer, any offering material
in connection with the Cash Offer other than the Prospectus.
(t) The Company has not taken and will not take, directly or
indirectly, any action resulting in a violation of Rule 102 of Regulation M
promulgated under the Exchange Act or designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the price of the
Common Stock to facilitate the distribution of the Exchange Notes.
(u) Each of the Exchange Agent Agreement and the Information Agent
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Agreement between the Company and The Bank of New York (the "Exchange Agent
Agreement") and X.X. Xxxx & Co., Inc. ("the Information Agent Agreement"),
respectively, is or will be in full force and effect.
(v) Except as disclosed in the Prospectus and except as would not,
singly or in the aggregate, result in a Material Adverse Effect, (i) neither the
Company nor any of its subsidiaries is in violation of or has liability under
any federal, state, local, municipal or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent,
decree or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened release
of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, "Hazardous
Materials"), to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials, or to the
restoration, reclamation of or compensation for natural resources (collectively,
"Environmental Laws"), (ii) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental Laws
and are each in compliance with their requirements, (iii) there are no pending
or, to the knowledge of the Company, threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries and (iv) to the
knowledge of the Company, there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or any Environmental Laws.
(w) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent, and the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its or any subsidiary's principal suppliers, manufacturers,
customers or contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(x) Except as disclosed in the Prospectus, there are no persons with
registration rights or other similar rights to have securities registered
pursuant to the Registration Statement or otherwise registered by the Company
under the Securities Act.
9. Further Agreements of the Company. The Company agrees with you that:
(a) The Company will use its best efforts to cause the Registration
Statement and any amendment thereof to become effective as soon as possible. If
not yet effective at the time and date that this Agreement is executed and
delivered by the parties hereto, the Company will use its best efforts to cause
any abbreviated registration statement pursuant to Rule 462(b) of the Rules and
Regulations as may be required subsequent to the date the Registration Statement
is declared effective to become effective as promptly as possible; the Company
will notify you,
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promptly after it shall receive notice thereof, of the time when the
Registration Statement, any subsequent amendment to the Registration Statement
or any abbreviated registration statement has become effective or any supplement
to the Prospectus has been filed; if for any reason the filing of the final form
of the Prospectus is required under Rule 424(b)(3) of the Rules and Regulations,
the Company will provide evidence satisfactory to you that the Prospectus
contains such information and has been filed with the Commission within the time
period prescribed; the Company will notify you promptly of any request by the
Commission for the amending or supplementing of the Registration Statement or
the Prospectus or for additional information relating to the Cash Offer;
promptly upon your request, the Company will prepare and file with the
Commission any amendments or supplements to the Registration Statement or
Prospectus which, in the opinion of your counsel, may be necessary or advisable
in connection with the Cash Offer; the Company will promptly prepare and file
with the Commission, and promptly notify you of the filing of, any amendments or
supplements to the Registration Statement or Prospectus which may be necessary
to correct any statements or omissions, if, at any time when a prospectus
relating to the Cash Offer is required to be delivered under the Securities Act
and the Exchange Act, any event shall have occurred as a result of which the
Prospectus or any other prospectus relating to the Cash Offer as then in effect
would include any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and the Company will
file no amendment or supplement to the Registration Statement or Prospectus or
the Incorporated Documents, or, prior to the end of the period of time in which
the Prospectus relating to the Cash Offer is required to be delivered under the
Securities Act and the Exchange Act, file any document which upon filing becomes
an Incorporated Document, which shall not previously have been submitted to you
a reasonable time prior to the proposed filing thereof and will give reasonable
consideration to your or your counsel's comments, if any, thereon, subject,
however, to compliance with the Securities Act and the Rules and Regulations,
the Exchange Act and the Rules and Regulations of the Commission thereunder and
the provisions of this Agreement.
(b) The Company will advise you, promptly after it shall receive
notice or obtain knowledge, of the issuance of any order by the Commission
refusing or suspending the effectiveness of the Registration Statement or of the
initiation or threat of any proceeding for that purpose; and it will promptly
use its best efforts to prevent the issuance of any refusal or stop order or to
obtain its withdrawal at the earliest possible moment if such refusal or stop
order should be issued.
(c) The Company will use its best efforts to qualify the Exchange
Notes issuable pursuant to the Cash Offer under the securities laws of such
jurisdictions as you may designate and to continue such qualifications in effect
for so long as may be required for purposes of the Cash Offer, except that the
Company shall not be required in connection therewith or as a condition thereof
to qualify as a foreign corporation or to execute a general consent to service
of process in any jurisdiction in which it is not otherwise required to be so
qualified or to so execute a general consent to service of process. In each
jurisdiction in which the Exchange Notes shall have been qualified as above
provided, the Company will make and file such statements and reports in each
year as are or may be required by the laws of such jurisdiction.
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(d) The Company will use its best efforts to have the Exchange Notes
and the shares of Common Stock underlying the Exchange Notes listed on the NYSE.
(e) The Company will make generally available to its security
holders and to the Placement Agent by filing with the Commission as soon as is
practicable, an earnings statement covering a twelve-month period beginning not
later than the first day of the Company's fiscal quarter next following the
effective date of the Registration Statement that satisfies the provisions of
Section 11(a) of the Securities Act and the Rules and Regulations of the
Commission thereunder.
(f) Without limiting Sections 5, 7 and 13 of this Agreement, if the
transactions contemplated hereby are not consummated by reason of any failure,
refusal or inability on the part of the Company to perform any agreement on its
part to be performed hereunder or to fulfill any condition of your obligations
hereunder, the Company will reimburse you for all out-of-pocket expenses
(including fees and disbursements of your counsel) incurred by you in connection
with the Cash Offer.
(g) During a period of 90 days from the date of the Prospectus, the
Company will not, without the prior written consent of the Placement Agent, (i)
directly or indirectly, offer, pledge, sell, contract to sell, sell any option
or contract to purchase, purchase any options or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer or dispose of any
Shares or any securities convertible into or exercisable or exchangeable for
Shares or file any registration statement under the Securities Act with respect
to any of the foregoing or (ii) enter into any swap or any other agreement or
any transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Shares, whether any such swap or
transaction described in clause (i) or (ii) above is to be settled by delivery
of Shares or such other securities, in cash or otherwise. The foregoing sentence
shall not apply to (A) the Securities to be sold hereunder, (B) any Shares
issued or options to purchase Shares granted pursuant to existing employee plans
of the Company referred to in the Prospectus, (C) any Shares issued in
connection with the rights described in the Prospectus, (D) any Shares issued
pursuant to any non-employee director stock plan or dividend reinvestment plan,
or (E) Shares issuable upon the conversion of any of the Company's outstanding
Debentures.
10. Conditions of Placement Agent's Obligations. Your obligations as
provided shall be subject at all times on and prior to the Closing Date to the
accuracy of the representations and warranties of the Company herein, to the
accuracy of the statements of officers of the Company made pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The Registration Statement shall have been filed and no stop
order refusing the effectiveness thereof shall have been issued and the
Registration Statement shall become effective as promptly as possible but in no
event later than the Closing Date and no stop order suspending the effectiveness
thereof shall have been issued and no proceedings for either purpose shall have
been initiated or, to the knowledge of the Company or you, threatened by the
Commission, and any request of the Commission for additional information (to be
included in
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the Registration Statement, the Prospectus, any Incorporated Document, or
otherwise) shall have been complied with to the reasonable satisfaction of your
counsel.
(b) After execution and delivery of this Agreement and prior to the
Closing Date there shall not have occurred from that described in the Prospectus
(a) any adverse change or development in the condition (financial or otherwise),
earnings, operations, business or business prospects of the Company and its
subsidiaries considered as one enterprise, (b) any obligation, direct or
contingent, incurred by the Company or its subsidiaries, except obligations
incurred in the ordinary course of business, (c) any change in the capital stock
or outstanding indebtedness of the Company, (d) any dividend or distribution of
any kind declared, paid or made on the capital stock of the Company; or (e) any
loss or damage (whether or not insured) to the property of the Company or any of
its subsidiaries which has been sustained or will have been sustained that
either individually or in the aggregate, in the Placement Agent's reasonable
judgment, are material and adverse and that makes it, in the Placement Agent's
judgment impracticable to recommend that holders of Debentures participate in
the Cash Offer on the terms and in the manner contemplated in the Registration
Statement.
(c) All corporate proceedings and other legal matters in connection
with this Agreement, the Registration Statement, the Prospectus, and the
registration, authorization, issue, and delivery of the Exchange Notes issuable
in accordance with the Cash Offer, shall have been executed in a manner
reasonably satisfactory to Placement Agent's Counsel, and such counsel shall
have been furnished with such papers and information as they may reasonably have
requested to enable them to pass upon the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxx & Xxxxxxx, counsel
for the Company, dated the Closing Date addressed to you to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
state of Idaho;
(ii) The Company has the corporate power and corporate
authority to enter into this Agreement, the Exchange Agent
Agreement, the Information Agent Agreement, and the Indenture under
which the Exchange Notes will be issued pursuant to the Cash Offer;
(iii) This Agreement, the performance by the Company of its
obligations hereunder, the Cash Offer, the issuance and delivery by
the Company of the Exchange Notes pursuant to the Indenture and
consummation of the Cash Offer have been duly authorized by all
necessary corporate action on the part of the Company; and this
Agreement has been duly executed and delivered by the Company;
(iv) The Exchange Agent Agreement and the Information Agent
Agreement have been duly authorized, executed and delivered by the
Company;
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(v) The Company is not, or after giving effect to the Cash
Offer, will not be, directly or indirectly "controlled" by an
"investment company," as such terms are defined in the 1940 Act;
(vi) The Registration Statement has been filed under the
Securities Act and, to such counsel's knowledge, no refusal order
preventing effectiveness, and after effectiveness, no stop order
suspending the effectiveness, of the Registration Statement has been
issued and to such counsel's knowledge, no proceedings for that
purpose have been instituted or are pending or threatened under the
Securities Act;
(vii) The Registration Statement and the Prospectus, and each
amendment or supplement thereto (other than the financial
statements, including supporting schedules, and financial data
derived therefrom as to which such counsel need express no opinion),
as of the effective date of the Registration Statement, complied as
to form in all material respects with the requirements of the
Securities Act and the applicable Rules and Regulations thereunder;
(viii) The information in the Prospectus under the captions
"The Cash Offer for Additional Exchange Notes," "Description of the
Debentures," "Description of Exchange Notes" and "Description of the
Capital Stock," insofar as such statements purport to constitute a
summary of the legal matters, documents or proceedings referred to
therein, fairly summarize in all material respects the matters
referred to therein;
(ix) The statements in the Prospectus under the caption
"United States Federal Income Tax Considerations," in so far as they
purport to describe the provisions of the laws referred to therein,
fairly summarize such laws in all material respects;
(x) The execution and delivery by the Company of, and the
performance by the Company of its obligations under this Agreement,
the Cash Offer, the issuance and delivery by the Company of the
Exchange Notes pursuant to the Cash Offer and consummation of the
Cash Offer, and the fulfillment of the terms hereof and thereof will
not, to such counsel's knowledge, result in a material breach or
violation of any of the terms and provisions of, or constitute a
default under, any applicable U.S. federal or state statute, rule or
regulation known to such counsel or, to such counsel's knowledge,
any order, writ or decree of any U.S. federal or state court,
government or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or over any of their
properties or operations; provided, however, that no opinion need be
rendered concerning state securities or Blue Sky laws;
(xi) No consent, approval, authorization, permit or order of
or qualification with any U.S. federal or state court, government or
governmental
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agency or body having jurisdiction over the Company or any of its
subsidiaries, or over any of their properties or operations, is
necessary in connection with the consummation by the Company of its
obligations under this Agreement, the Cash Offer, the issuance and
delivery of the Exchange Notes pursuant to the Cash Offer and the
consummation of the Cash Offer, except such as have been obtained
under the Securities Act or Exchange Act or such as may be required
under state or other securities or Blue Sky laws or as contemplated
by such agreements;
(xii) The Indenture has been duly authorized, executed and
delivered by the Company and assuming due authorization, execution
and delivery of the Indenture by the Trustee, constitutes a valid
and binding agreement of the Company enforceable in accordance with
its terms and the Indenture has been duly qualified under the TIA;
(xiii) The Exchange Notes when executed and authenticated in
accordance with the provisions of the Indenture, assuming due
authorization, execution and delivery of the Indenture by the
Trustee, and delivered in accordance with the terms of the Cash
Offer, will be entitled to the benefits of the Indenture and will be
valid and binding obligations of the Company enforceable in
accordance with their terms; and the Exchange Notes conform in all
material respects to the description contained in the Registration
Statement and Prospectus;
(xiv) The Shares issuable upon conversion of the Exchange
Notes have been duly authorized and reserved for the issuance and
delivery and when issued in accordance with the terms of the
Exchange Notes, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares is not subject to
any preemptive or similar rights under the Company's certificate of
incorporation, by-laws or the Idaho Business Corporation Act;
(xv) The Company has the corporate power and corporate
authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus;
(xvi) The Company is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction in
which it does business;
(xvii) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus as of the dates stated
therein;
(xviii) Each of the Incorporated Documents (other than the
financial statements, including supporting schedules, and the
financial data derived therefrom as to which such counsel need
express no opinion) complied when filed pursuant to the Exchange Act
and the applicable Rules and Regulations of the Commission
thereunder as to form in all material respects with the requirements
of the Securities Act and the Rules and Regulations and the Exchange
Act and the
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applicable Rules and Regulations of the Commission thereunder;
(xix) To such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened against the Company
or any of its subsidiaries of a character required to be disclosed
in the Registration Statement, the Prospectus or any Incorporated
Document by the Securities Act or the Rules and Regulations
thereunder or by the Exchange Act or the applicable Rules and
Regulations of the Commission thereunder, other than those described
therein;
(xx) To such counsel's knowledge, neither the Company nor any
of its subsidiaries is presently (a) in material violation of its
respective charter or bylaws, or (b) in material breach of any
applicable U.S. federal or state statute, rule or regulation or, to
such counsel's knowledge any order, writ or decree of any U.S.
federal or state court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries, or over
any of their properties or operations; and,
(xxi) The execution and delivery by the Company of, and the
performance by the Company of its obligations under this Agreement,
the Cash Offer, the issuance and delivery by the Company of the
Exchange Notes pursuant to the Cash Offer and consummation of the
Cash Offer, and the fulfillment of the terms hereof and thereof will
not, to such counsel's knowledge, result in any violation of the
Company's charter or bylaws.
(e) You shall have received the opinion of Xxxxxxx X. Xxxx, counsel
for the Company, dated the Closing Date, addressed to you to the effect that:
(i) To such counsel's knowledge, after due inquiry, the
Company has not failed to obtain any license, claim, permit,
franchise or other administrative or governmental authorization
necessary to the ownership or lease of its properties and assets or
to the conduct of its business as it is presently conducted, which
failure to obtain would, individually or in the aggregate, have a
Material Adverse Effect, or which might, if determined adversely to
the company, materially and adversely affect the execution, delivery
or performance by the Company of this Agreement and, all such
licenses, claims, permits, franchises or other administrative or
governmental authorizations which are so required are valid and
subsisting and in good standing;
(ii) To such counsel's knowledge, after due inquiry, the
Company and each of Coeur Rochester Inc., Coeur Silver Valley Inc.,
and Coeur Alaska Inc. (each a "Domestic Subsidiary" and together,
the "Domestic Subsidiaries") holds freehold title, mining leases,
mining claims or other conventional proprietary interests or rights
recognized in the relevant jurisdiction in which each property
described in the Prospectus is located, in the ore bodies and
mineral inventories described in the Prospectus (and all properties
respectively relating thereto) under
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valid, subsisting and enforceable title documents, contracts,
leases, licenses of occupation, mining concessions, permits, or
other recognized and enforceable instruments and documents,
sufficient to permit the Company or each of its subsidiaries, as the
case may be, to explore for, extract, exploit, remove, process and
refine the minerals relating thereto, except where the failure to so
hold such interests or rights would not have a Material Adverse
Effect. In addition, to such counsel's knowledge, after due inquiry,
either the Company or each of its subsidiaries has all necessary
surface rights, water rights and rights in water, rights of way,
licenses, easement, ingress, egress and access rights, and all other
necessary rights and interests granting the Company or any of its
subsidiaries, as the case may be, the rights and ability to explore
for, mine, extract, and remove the minerals derived from the ore
bodies and mineral inventories described in the Prospectus and to
transport for refinement or market or distribute the ore and metals
produced, all as referred to in the Prospectus, with only such
exceptions as are described in the Prospectus or as do not have a
Material Adverse Effect, and each of the aforementioned interests
and rights is currently in good standing except for those interests
and claims which, if not kept in good standing, would not have a
Material Adverse Effect;
(iii) Each of the Company's Domestic Subsidiaries has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, and
has the corporate power to own, lease and operate its properties and
to conduct its business as described in the Prospectus, and is
qualified to do business as a foreign corporation and is in good
standing in each jurisdiction, if any, in which the ownership and
leasing of its properties or the conduct of its business requires
such qualification, except where the failure to be so qualified or
be in good standing would not have a Material Adverse Effect;
(iv) All issued and outstanding shares of capital stock of
each of the Company's Domestic Subsidiaries have been duly
authorized and validly issued and are fully paid and nonassessable
and, to such counsel's knowledge, have not been issued in violation
of or subject to any preemptive right, co-sale right, registration
right, right of first refusal or other similar right and, except as
disclosed in the Registration Statement and Exchange Offer
Materials, are owned by the Company directly or indirectly through
one or more subsidiaries of the Company, free and clear of any
pledge, lien, security interest, encumbrance, claim or equitable
interest (other than such preemptive rights or other rights to
subscribe for or purchase securities as were fully complied with or
expressly waived or with respect to the violation of which the right
to make a claim is barred by the applicable statute of limitations);
and,
(v) Except as disclosed in the Prospectus and except as
would not, singly or in the aggregate, result in a Material Adverse
Effect, (i) to such counsel's knowledge, after due inquiry, neither
the Company nor any of its
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Domestic Subsidiaries is in violation of or has liability under any
federal, state, local, municipal or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any
judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment,
relating to pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous
Materials"), to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous
Materials or to the restoration or reclamation of or compensation
for natural resources (collectively, "Environmental Laws"), (ii) the
Company and each of its Domestic Subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their
requirements, (iii) there are no pending threatened administrative,
regulatory or judicial actions, suits, demands, demand letters,
claims, liens, notices of noncompliance or violation, investigation
or proceedings relating to any Environmental Law against the Company
or any of its Domestic Subsidiaries and (iv) to such counsel's
knowledge, after due inquiry, there are no events or circumstances
that might reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting
the Company or any of its Domestic Subsidiaries relating to
Hazardous Materials or any Environmental Laws.
(f) You shall have received opinions substantially, in the form
below for each of CDE Fachinal Ltd., Compania Minera CDE Petorca, and Empressa
Minera Manquirie S.R.L. (each a "Foreign Subsidiary" and together, the Foreign
Subsidiaries), opinions customary to such foreign jurisdiction of incorporation
of each Foreign Subsidiary of foreign counsel that is satisfactory to you,
addressed to you and to the effect that:
(i) Each of the Company's Foreign Subsidiaries has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, and
has the corporate power to own, lease and operate its properties and
to conduct its business as described in the Prospectus, and is
qualified to do business as a foreign corporation and is in good
standing in each jurisdiction, if any, in which the ownership and
leasing of its properties or the conduct of its business requires
such qualification, except where the failure to be so qualified or
be in good standing would not have a Material Adverse Effect;
(ii) All issued and outstanding shares of capital stock of
each of the Company's Foreign Subsidiaries have been duly authorized
and validly issued and are fully paid and nonassessable and, to such
counsel's knowledge, have not
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been issued in violation of or subject to any preemptive right,
co-sale right, registration right, right of first refusal or other
similar right and, except as disclosed in the Registration Statement
are owned by the Company directly or indirectly through one or more
subsidiaries of the Company, free and clear of any pledge, lien,
security interest, encumbrance, claim or equitable interest (other
than such preemptive rights or other rights to subscribe for or
purchase securities as were fully complied with or expressly waived
or with respect to the violation of which the right to make a claim
is barred by the applicable statute of limitations);
(iii) To such counsel's knowledge, after due inquiry, each of
the Company's Foreign Subsidiaries has not failed to obtain any
license, claim, permit, franchise or other administrative or
governmental authorization necessary to the ownership or lease of
its properties and assets or to the conduct of its business as it is
presently conducted, which failure to obtain would, individually or
in the aggregate, have a Material Adverse Effect, or which might, if
determined adversely to the Company, materially and adversely affect
the execution, delivery or performance by the Company of this
Agreement and, all such licenses, claims, permits, franchises or
other administrative or governmental authorizations which are so
required are valid and subsisting and in good standing;
(iv) To such counsel's knowledge, after due inquiry, the
Company and each of its Foreign Subsidiaries holds freehold title,
mining leases, mining claims or other conventional proprietary
interests or rights recognized in the relevant jurisdiction in which
each property described in the Prospectus is located, in the ore
bodies and mineral inventories described in the Prospectus (and all
properties respectively relating thereto) under valid, subsisting
and enforceable title documents, contracts, leases, licenses of
occupation, mining concessions, permits, or other recognized and
enforceable instruments and documents, sufficient to permit the
Company or each of its subsidiaries, as the case may be, to explore
for, extract, exploit, remove, process and refine the minerals
relating thereto, except where the failure to so hold such interests
or rights would not have a Material Adverse Effect. In addition, to
such counsel's knowledge, after due inquiry, each of the Company's
Foreign Subsidiaries has all necessary surface rights, water rights
and rights in water, rights of way, licenses, easement, ingress,
egress and access rights, and all other necessary rights and
interests granting the relevant Foreign Subsidiary, as the case may
be, the right and ability to explore for, mine, extract, and remove
the minerals derived from the ore bodies and mineral inventories
described in the Prospectus and to transport for refinement or
market or distribute the ore and metals produced, all as referred to
in the Prospectus, with only such exceptions as are described in the
Prospectus or as do not have a Material Adverse Effect, and each of
the aforementioned interests and rights is currently in good
standing except for those interests and claims which, if not kept in
good standing, would not have a Material Adverse Effect; and,
(v) Except as disclosed in the Prospectus and except as
would not,
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singly or in the aggregate, result in a Material Adverse Effect, (i)
to such counsel's knowledge, after due inquiry, neither the Company
nor any of its Foreign Subsidiaries is in violation of or has
liability under any federal, state, local, municipal or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous
Materials"), to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous
Materials or to the restoration or reclamation of or compensation
for natural resources (collectively, "Environmental Laws"), (ii) the
Company and each of its Foreign Subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their
requirements, (iii) there are no pending threatened administrative,
regulatory or judicial actions, suits, demands, demand letters,
claims, liens, notices of noncompliance or violation, investigation
or proceedings relating to any Environmental Law against the Company
or any of its Foreign Subsidiaries and (iv) to such counsel's
knowledge, after due inquiry, there are no events or circumstances
that might reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting
the Company or any of its Foreign Subsidiaries relating to Hazardous
Materials or any Environmental Laws.
In addition to its opinions set forth above, Xxxxx & Xxxxxxx shall
provide a statement to the effect that nothing has come to such counsel's
attention that causes it to believe that the Registration Statement, (other than
the financial statements and notes thereto and supporting schedules and other
financial and statistical data, set forth therein or omitted therefrom, as to
which no advice is given), at the time the Registration Statement was declared
effective by the Commission, 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 that the Prospectus (other than
the financial statements and notes thereto and supporting schedules and other
financial and statistical data, set forth therein or omitted therefrom, as to
which no advice is given), as of its date and at all times subsequent to the
effectiveness and up to and on the Closing Date included 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, not misleading. With respect to such statement, such counsel may state
that its belief is based upon procedures set forth therein, but it is without
independent check or verification except as specified therein.
The opinions set forth above that any document is valid, binding or
enforceable according to its terms are qualified as to:
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(i) limitations imposed by bankruptcy, insolvency,
reorganization, arrangement, fraudulent conveyance, moratorium or
other similar laws relating to or affecting the rights and remedies
of creditors generally;
(ii) rights to indemnification and contribution which may be
limited by applicable law or equitable principles; and
(iii) general principles of equity, including, without
limitation, the possible unavailability of specific performance or
injunctive relief, and limitations or rights of acceleration,
regardless of whether enforceability is considered in a proceeding
at law or in equity.
Moreover, such counsel expresses no opinion as to the validity,
binding effect or enforceability of any provisions of the Indenture purporting
to impose penalties or any increase in interest rate to the extent they
constitute a penalty or are otherwise contrary to public policy.
The foregoing opinions of such counsel shall be limited to the
laws of the United States of America, the State of Idaho, the State of New York
(but only with respect to paragraphs 10(d)(x) and 10(d)(xi) and only insofar as
the opinions set forth in (xi) and (xii) related to validity, binding effect and
enforceability of the agreements referred to therein) and the Idaho Business
Corporation Act as such laws exist on the date such opinion is delivered.
(g) Counsel rendering the foregoing opinions may rely as to
questions of law not involving the laws of the United States of America or the
applicable state law, upon opinions of local counsel, and as to questions of
fact upon representations or certifications of officers of the Company, and of
government officials, in which case their opinion is to state that they are so
relying and that they have no knowledge of any material misstatement or
inaccuracy in any such opinion, representation or certificate. Copies of any
opinion, representation or certificate so relied upon shall be delivered to you,
as Placement Agent, and to your counsel.
(h) You shall have received on the Closing Date an opinion
of Shearman & Sterling, in form and substance satisfactory to you, with respect
to the sufficiency of all such corporate proceedings and other legal matters
relating to this Agreement and the transactions contemplated hereby as you may
reasonably require, and the Company shall have furnished to such counsel such
documents as they may have requested for the purpose of enabling them to pass
upon such matters.
(i) At the time of the execution of this Agreement, you
shall have received from Ernst & Young LLP, a letter dated as of such date, in
form and substance satisfactory to you containing statements and information of
the type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information for
the fiscal years prior to 1999 contained in the Prospectus. Additionally, you
shall have received from Xxxxxx Xxxxxxxx, LLP, a letter dated at the time of
execution of this Agreement, in form and substance satisfactory to you
containing statements and information of
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the type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information for
the fiscal years 1999 through 2001 contained in the Prospectus.
(j) You shall have received by or on the Closing Date, a
letter, dated as of the closing (or one business day prior thereto) as the case
may be, from Ernst & Young LLP and Xxxxxx Xxxxxxxx LLP addressed to you
substantially in the form of the draft letter, dated June ____, 2001, which
shall reaffirm the statements made in the letters referenced in (i) above.
(k) You shall have received a certificate of the Company,
dated as of the Closing Date, signed by the Chief Executive Officer and Chief
Financial Officer of the Company, certifying that, and you shall be satisfied
that:
(i) The representations and warranties of the Company in
this Agreement are true and correct in all material respects,
as if made on and as of the Closing Date or such other date as
of which any representation speaks, as the case may be, and
the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at
or prior to the Closing Date, as the case may be;
(ii) No stop order refusing or suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
are pending or threatened under the Securities Act;
(iii) When the Registration Statement became effective
and at all times subsequent thereto up to the date of such
certificate, the Registration Statement and the Prospectus,
and any amendments or supplements thereto, and the
Incorporated Documents, when such Incorporated Documents
became effective or were filed with the Commission, contained
all material information required to be included therein by
the Securities Act and the Rules and Regulations thereunder or
the Exchange Act and the applicable Rules and Regulations of
the Commission thereunder, as the case may be, and in all
material respects conformed to the requirements of the
Securities Act and the Rules and Regulations thereunder or the
Exchange Act and the applicable Rules and Regulations of the
Commission thereunder, as the case may be; the Registration
Statement, and any amendment or supplement thereto, did not
and does not include any 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;
the Prospectus, and any amendment or supplement thereto, did
not and does not include any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading; and since the effective date
of the Registration
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Statement, there has occurred no event required to be set
forth in an amended or supplemented Prospectus which has not
been so set forth; and
(iv) Subsequent to the respective dates as of which
information is given in the Registration Statement and
Prospectus and up to the date of such certificate, and except
as disclosed therein, there has not been (a) any material
adverse change in the condition (financial or otherwise),
earnings, operations, business or business prospects of the
Company and its subsidiaries considered as one enterprise, (b)
any transaction that is material to the Company and its
subsidiaries considered as one enterprise, except transactions
entered into in the ordinary course of business, (c) any
obligation, direct or contingent, that is material to the
Company and its subsidiaries considered as one enterprise,
incurred by the Company or its subsidiaries, except
obligations incurred in the ordinary course of business, (d)
any change in the capital stock or outstanding indebtedness of
the Company that is material to the Company and its
subsidiaries considered as one enterprise, (e) any dividend or
distribution of any kind declared, paid or made on the capital
stock of the Company, or (f) any loss or damage (whether or
not insured) to the property of the Company or any of its
subsidiaries which has been sustained or will have been
sustained and which has a Material Adverse Effect or a
Material Adverse Effect on the ability of the Company to
perform its obligations under the Cash Offer or consummate the
Cash Offer.
(l) The Company shall have furnished to you such further
certificates and documents as you shall reasonably request (including
certificates of officers of the Company) as to the accuracy of the
representations and warranties of the Company herein, as to the performance by
the Company of its obligations hereunder and as to the other conditions
concurrent and precedent to your obligations hereunder.
(m) The NASD shall have confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the terms and
arrangements in connection with the offering of the Securities.
(n) The Registration Rights Agreement shall be executed and
delivered by the Company on or prior to the Closing Date.
All such opinions, certificates, letters and documents will be
in compliance with the provisions hereof only if they are reasonably
satisfactory to your counsel. The Company will furnish you with such number of
conformed copies of such opinions, certificates, letters and documents as you
shall reasonably request.
11. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold you harmless
against any
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losses, claims, damages or liabilities, joint or several, to which you may
become subject under the Securities Act, the Exchange Act or otherwise,
specifically including, but not limited to, losses, claims, damages or
liabilities (or actions in respect thereof) arising out of or based upon (i) any
breach of any representation, warranty, agreement or covenant of the Company
herein contained; (ii) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, or any amendments or
supplements thereto, including any Incorporated Document, or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or (iii) any untrue
statement or alleged untrue statement of any material fact contained in any
Prospectus or any amendment or supplement thereto, or the omission or alleged
omission to state therein a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and agrees to reimburse you for any legal or other expenses
reasonably incurred by you in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, or Prospectus, or any such amendment or supplement
thereto, in reliance upon, and in conformity with, written information relating
to you furnished to the Company by you, specifically for use in the preparation
thereof.
The indemnity agreement in this Section 11(a) shall extend upon
the same terms and conditions to, and shall inure to the benefit of, you and
your affiliates and the partners, directors, officers, employees and agents of
you and your affiliates, and each person or entity, if any, who controls or is
under common control with, you within the meaning of the Securities Act or the
Exchange Act. This indemnity agreement shall be in addition to any liabilities,
which the Company may otherwise have.
(b) You agree to indemnify and hold harmless the Company
against any losses, claims, damages or liabilities, joint or several, to which
the Company may become subject under the Securities Act, the Exchange Act or
otherwise, specifically including, but not limited to, losses, claims, damages
or liabilities (or actions in respect thereof) arising out of or based upon (i)
any breach of any representation, warranty, agreement or covenant of yours
herein contained, (ii) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, or any amendments or
supplements thereto, including any Incorporated Document, or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or (iii) any untrue
statement or alleged untrue statement of any material fact contained in the
Prospectus or any amendment or supplement thereto, or the omission or alleged
omission to state therein a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, in the case of subparagraphs (ii) and (iii) of this Section 11(b) to
the extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon, and in
conformity with, written information furnished to the Company by you
specifically for use in the Registration Statement, or any amendment or
supplement thereto or in the preparation thereof, and you agree to reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
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connection with investigating or defending any such loss, claim, damage,
liability or action.
The indemnity agreement in this Section 11(b) shall extend upon
the same terms and conditions to, and shall inure to the benefit of, each
officer of the Company who signed the Registration Statement and each director
of the Company, and each person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act. This indemnity agreement
shall be in addition to any liabilities, which you may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 11 of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 11, notify the indemnifying party in
writing of the commencement thereof but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 11. In case any such
action is brought against any indemnified party, and it notified the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it shall elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of the indemnifying party's election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 11 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel (together with appropriate
local counsel) approved by the indemnifying party representing all the
indemnified parties under Section 11(a) or 11(b) hereof who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the actions, or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. In no event shall any
indemnifying party be liable in respect of any amounts paid in settlement of any
action unless the indemnifying party shall have approved the terms of such
settlement; provided that such consent shall not be unreasonably withheld. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnification
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on all claims that are the subject matter of such proceeding.
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(d) In order to provide for just and equitable contribution
in any action in which a claim for indemnification is made pursuant to this
Section 11 but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 11 provides for
indemnification in such case, all the parties hereto shall contribute to the
aggregate losses, claims, damages or liabilities to which they may be subject
(after contribution from others) in such proportion so that you are responsible
for the portion represented by the percentage that the maximum Placement Agent's
fee payable to the Placement Agent pursuant to Section 6 hereof bears to the
value of the maximum amount of Exchange Notes issuable pursuant to the Cash
Offer, and the Company is responsible for the remaining portion, provided,
however, that (i) you shall not be required to contribute any amount in excess
of the amount by which the fee paid to you pursuant to Section 6 hereof exceeds
the amount of damages which you have been otherwise required to pay and (ii) no
person guilty of a fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who is not guilty of such fraudulent misrepresentation. The contribution
agreement in this Section 11(d) shall extend upon the same terms and conditions
to, and shall inure to the benefit of, each person, if any, who controls you or
the Company within the meaning of the Securities Act or the Exchange Act and
each officer of the Company who signed the Registration Statement and each
director of the Company.
(e) The parties to this Agreement hereby acknowledge that
they are sophisticated business persons who were represented by counsel during
the negotiations regarding the provisions hereof including, without limitation,
the provisions of this Section 11, and are fully informed regarding said
provisions. They further acknowledge that the provisions of this Section 11
fairly allocate the risks in light of the ability of the parties to investigate
the Company and its business in order to assure that adequate disclosure is made
in the Registration Statement and Prospectus as required by the Securities Act
and the Exchange Act.
12. Representations, Warranties, Covenants and Agreements to Survive
Delivery.
All representations, warranties, covenants and agreements of the
Company and you herein or in certificates delivered pursuant hereto, and the
indemnity and contribution agreements contained in Section 11 hereof shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of you or any person controlling you within the meaning of
the Securities Act or the Exchange Act, or by or on behalf of the Company or any
of its officers, directors or controlling persons within the meaning of the
Securities Act or the Exchange Act, and shall survive the completion of the Cash
Offer or termination of this Agreement.
13. Termination.
(a) This Agreement shall terminate upon the earliest to
occur of (i) thirty days after the Expiration Date, (ii) any of the conditions
specified in Section 10 has not been fulfilled
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as of any date such condition is required to be fulfilled pursuant to Section 10
(and the Placement Agent shall have notified the Company thereof), (iii) the
date on which the Company terminates or withdraws the Cash Offer for any reason,
or (iv) any modification to the business terms of the Exchange offer in the
Company's sole and absolute discretion that results in the Placement Agent
withdrawing pursuant to Section 5 hereof, (the earliest to occur of clauses (i),
(ii), (iii) or (iv) being referred to as the "Termination Date").
(b) Notwithstanding termination of this Agreement pursuant
to subsection (a) above, the obligations of the parties pursuant to Sections 6,
7 and 11 shall survive any termination of this Agreement.
If you elect to terminate this Agreement as provided in this
Section 13, you shall promptly notify the Company by telephone, telecopy or
telegram, in each case confirmed by letter.
14. Notices. All notices or communications hereunder, except as
herein otherwise specifically provided, shall be in writing and if sent to you
shall be mailed, delivered, or telecopied (and confirmed by letter) to you c/x
Xxxxxxxxx Xxxxxxxx, 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000, telecopier number (000) 000-0000, Attention: General Counsel; if sent to
the Company, such notice shall be mailed, delivered, telegraphed (and confirmed
by letter) or telecopied (and confirmed by letter) to Coeur d'Xxxxx Xxxxx
Corporation., Attention: Xxxxxxxx X. Xxxxx, Senior Vice President and Chief
Financial Officer, with a copy to Xxxxx & Lardner, 0000 X Xxxxxx, X.X., Xxxxx
000, Xxxxxxxxxx, X.X. 00000. Attention: Xxxxxx X. Xxxx, Esq.
15. Parties. This Agreement shall inure to the benefit of and be
binding upon the Placement Agent and the Company and their respective executors,
administrators, successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person or entity, other
than the parties hereto and their respective executors, administrators,
successors and assigns, and the controlling persons within the meaning of the
Securities Act or the Exchange Act, officers and directors referred to in
Section 11 hereof, any legal or equitable right, remedy or claim in respect of
this Agreement or any provisions herein contained. This Agreement, and all
conditions and provisions hereof, is intended and is for the sole and exclusive
benefit of the parties hereto and their respective executors, administrators,
successors and assigns and said controlling persons and said officers and
directors, and for the benefit of no other person or entity. No Holder of
Debentures receiving Exchange Notes upon exchange of such Debentures shall be
construed a successor or assign by reason merely of such exchange.
16. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
17. Counterparts. This Agreement may be signed in several
counterparts, each of which will constitute an original.
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Please indicate your willingness to act as Placement Agent on the terms
set forth herein and your acceptance of the foregoing provisions by signing in
the space provided below for that purpose and returning to us a copy of this
letter, whereupon this letter and your acceptance shall constitute a binding
agreement between us.
Very truly yours,
COEUR D'XXXXX XXXXX CORPORATION
By
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board, President
and Chief Executive Officer
Accepted as of the date first above written:
XXXXXXXXX XXXXXXXX, INC.
By
--------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
#600970
