EXHIBIT 1
Stillwater Mining Company
7% Convertible
Subordinated Notes due 2003
Standby Underwriting Agreement
New York, New York
April 1, 1999
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Stillwater Mining Company, a Delaware corporation, (the "Company")
intends to call for redemption on May 1, 1999 (the "Redemption Date") all of its
7% Convertible Subordinated Notes due 2003 (the "Notes"), at a total redemption
price of $1,075 per $1,000 principal amount of Notes (which amount includes
accrued interest to the date of redemption and the required redemption premium)
(the "Redemption Price"). The Notes are convertible into shares of the Common
Stock, $.01 par value, of the Company ("Common Stock"), at any time prior to
5:00 P.M., New York City time, on April 28, 1999.
In order to ensure that the Company will have available sufficient
funds to redeem any Notes not converted prior to or on the Redemption Date, the
Company desires to make arrangements pursuant to which you (the "Underwriter")
will, following the Redemption Date, purchase shares of Common Stock that would
have been issuable upon the conversion of the Notes that have not been
surrendered for conversion prior to 5:00 P.M., New York City time, on April 28,
1999.
Any reference herein to the Registration Statement, a Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act or pursuant to Rule 462(d)
under the Act after the Effective Date of the Registration Statement, or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein by
reference. Certain terms used herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and warrants
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to, and agrees with, the Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a Registration Statement
(file number 333-58251) on Form S-3, including a related basic prospectus, for
registration under the Act of the issuance by the Company of the shares of
Common Stock issuable upon conversion by the Underwriter of Notes and the sale
by the Underwriter of any shares of Common Stock that may be acquired by them
hereunder. The Company may have filed one or more amendments or supplements
thereto, including a Preliminary Final Prospectus, each of which has previously
been furnished to you. The Company will next file with the Commission one of
the following: (1) after the Effective Date of such Registration Statement, a
final prospectus supplement relating to the Securities (as defined in Section
2(b) hereof) in accordance with Rules 430A and 424(b), or (2) a final prospectus
in accordance with Rules 415 and 424(b). In the case of clause (1), the Company
has included in such Registration Statement, as amended at the Effective Date,
all information other than Rule 430A information required by the Act and the
rules thereunder to be included in such Registration Statement and the Final
Prospectus; provided, however, that the Company makes no representations or
warranties as to the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished herein or in writing to the Company
by the Underwriter specifically for inclusion in the Registration Statement or
the Final Prospectus (or any supplement thereto). As filed, such amendment and
form of final prospectus supplements shall contain all Rule 430A information,
together with all other such required information and, except to the extent the
Underwriter shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond those contained in the
Basic Prospectus and any Preliminary Final Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made therein. For
purposes of this Agreement the language "set forth in the Preliminary or Final
Prospectus" shall include all information incorporated by reference into the
Preliminary or Final Prospectus. If the Registration Statement contains the
undertaking specified by Regulation S-K Item 512(a), the Registration Statement,
at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) in accordance with Rule
424(b) and, on the Redemption Date and on the Closing Date (as defined herein),
the Final Prospectus (and any supplements thereto) will, comply in all material
respects with the applicable requirements of the Act and the Exchange Act and
the respective rules thereunder; on the Effective Date and at the Execution
Time, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Final Prospectus, if not filed
pursuant to
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Rule 424(b), did not or will not, and on the date of any filing pursuant to Rule
424(b), on the Redemption Date and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not, include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or omitted from
the Registration Statement or the Final Prospectus (or any supplement thereto)
in reliance upon and in conformity with information furnished herein or in
writing to the Company by the Underwriter specifically for inclusion in the
Registration Statement or the Final Prospectus (or any supplement thereto).
(c) The Notes are convertible into 55.960 shares of Common Stock per
$1,000 principal amount of Notes. At the Execution Time, there was outstanding
$51,423,000 aggregate principal amount of Notes. The redemption of all the
outstanding Notes has been duly authorized by the Company. Notices of
Redemption (as defined below) must be mailed no later than 20 days before the
Redemption Date with respect to all holders other than DTC or any nominee
thereof, and no later than 30 days before the Redemption Date with respect to
DTC or any nominee thereof (the "Required Mailing Dates"). By the Required
Mailing Dates, all of the Notes will have been duly called for redemption in
accordance with the terms of that certain Indenture dated as of April 29, 1996
between the Company and the Colorado National Bank, as trustee (the
"Indenture"); and the right to convert the Notes into shares of Common Stock
will, as a result of such call, expire at 5:00 P.M., New York City time, on
April 28, 1999. Copies of the forms of notice of redemption and the related
letters of transmittal (collectively, the "Notices of Redemption") with respect
to each series of Notes have been heretofore delivered to you by the Company.
The Notes have been duly and validly authorized and issued and constitute valid
and binding obligations of the Company entitled to the benefits of the
Indenture, enforceable in accordance with their terms except as enforcement
thereof may be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights and by general equitable principles.
(d) The Company has neither taken nor will take, directly or
indirectly, any action designed to cause or result in, or that has constituted
or that might be reasonably expected to cause or result in, stabilization or
manipulation of the price of any security of the Company to facilitate the
conversion of the Notes (provided that the Company does not make any
representation as to any actions that may be taken by the Underwriter); and the
Company has not distributed and will not distribute any prospectus or other
offering material in connection with the issue and sale of the Securities (as
defined herein) other than the Registration Statement or the Final Prospectus or
other material permitted by the Act.
(e) The Company has neither paid or given, nor will pay or give,
directly or indirectly, any commission or other remuneration for soliciting the
conversion of Notes into Common Stock and cash.
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(f) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect; and no
proceedings for such purpose are pending before or, to the knowledge of the
Company, threatened by the Commission.
(g) Since the respective dates as of which information is given in the
Registration Statement and the Final Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition
(financial or otherwise), earnings or business affairs of the Company and its
subsidiaries considered as one enterprise, whether or not arising from
transactions in the ordinary course of business (a "Material Adverse Effect"),
and (B) there have been no transactions entered into by the Company or any of
its subsidiaries, other than those in the ordinary course of business, which are
material with respect to the Company and its subsidiaries considered as one
enterprise.
(h) This Agreement has been duly authorized, executed and delivered by
the Company.
(i) The call of the Notes for redemption, the conversion or redemption
thereof, the issue and sale of the Securities, the execution, delivery and
performance by the Company of this Agreement and the consummation by the Company
of the transactions contemplated herein and compliance by the Company with its
obligations hereunder do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of
the Company or pursuant to any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the Company is
a party or by which it may be bound, or to which any of the property or assets
of the Company is subject (except for such conflicts, breaches or defaults or
liens, charges or encumbrances that would not result in a Material Adverse
Effect), nor will any such action result in any violation of the provisions of
the charter or by-laws of the Company, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, known to the Company having
jurisdiction over the Company or any of its assets, properties or operations
which would result in a Material Adverse Effect. As used herein, a "Repayment
Event" means any event or condition that gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or any subsidiary.
(j) The Company is not and, after giving effect to the issue and sale
of the Securities and the application of the proceeds thereof as described in
the Final Prospectus, will not be, an "investment company" as defined in the
Investment Company Act of 1940, as amended.
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(k) The Company has no significant subsidiaries within the meaning of
Rule 1-02 of Regulation S-X under the Act. The Company has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction in which it is chartered or organized with full
corporate power and authority to own its properties and conduct its business as
described in the Final Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of Colorado, Montana
and each other jurisdiction which requires such qualification wherein it owns or
leases material properties or conducts material business, except where any
failure to be so qualified would not individually or in the aggregate have a
Material Adverse Effect on the condition (financial or otherwise), earnings,
business or properties of the Company and its subsidiaries, taken as a whole.
(l) The Company's authorized equity capitalization is as set forth in
the Final Prospectus; the Common Stock of the Company conforms in all material
respects to the description thereof contained in the Final Prospectus; the
outstanding shares of Common Stock have been duly and validly authorized and
issued and are fully paid and nonassessable; the Securities being sold hereunder
have been duly and validly authorized, and, when issued and delivered to and
paid for by the Underwriter pursuant to this Agreement, will be fully paid and
nonassessable; the Securities have been duly authorized for listing, subject to
official notice of issuance on the American Stock Exchange; the certificates for
the Securities are in valid and sufficient form; the holders of outstanding
shares of Common Stock of the Company are not entitled to preemptive or other
rights to subscribe for the Securities; and, except as set forth in the Final
Prospectus and except for grants of options under the Company's stock option
plans, no options, warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligations into or exchange any
securities for, shares of Common Stock of or ownership interests in the Company
are outstanding.
(m) Except for the Rights Agreement Dated October 25, 1995 and the
Registration Agreement dated April 29, 1996, no person or entity has any right,
contractual or otherwise, to cause the Company or any of its affiliates to issue
to such person or entity, or register for offer or sale pursuant to the Act, any
securities of the Company of any of its affiliates, in connection with the
transactions contemplated by this Underwriting Agreement or the Registration
Statement.
(n) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or Final Prospectus, or
to be filed as an exhibit thereto, which is not described or filed as required.
(o) No consent, approval, authorization, filing with or order of any
court or government agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained under the
Act and such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriter in the manner contemplated herein and in the Final Prospectus.
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(p) No default exists, and no event has occurred which, with notice or
lapse of time or both, would constitute a default in, the due performance and
observance of any term, covenant or condition of any material indenture, credit
agreement, mortgage, deed of trust, lease or other agreement or instrument to
which the Company is a party or by which the Company or any of its properties is
bound except such as would not have a Material Adverse Effect on the condition
(financial or otherwise), earnings, business or properties of the Company.
(q) The consolidated financial statements and schedules of the Company
and its consolidated subsidiary included in the Final Prospectuses and the
Registration Statement present fairly in all material respects the financial
condition, results of operations and cash flows of the Company as of the dates
and for the periods indicated, comply as to form with the applicable accounting
requirements of the Act and the rules and regulations thereunder and have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved (except as otherwise noted
therein). The operating and financial data set forth under the captions
"Summary Operating and Financial Information" and "Selected Financial
Information" in the Final Prospectus and Registration Statement accurately
summarize the information included therein.
(r) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
and its subsidiaries or their respective properties is pending and, to the
Company's knowledge, no notice of any threatened action, suit or proceeding by
or before any court or governmental agency, authority or body or any arbitrator
involving the Company has been received that (i) could reasonably be expected to
have a Material Adverse Effect on the performance by the Company of this
Agreement or the consummation by the Company of any of the transactions
contemplated hereby or (ii) could reasonably be expected to have a Material
Adverse Effect on the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Prospectus.
(s) Except as set forth in the Final Prospectus, each of the Company
and its subsidiaries, owns, leases or has possessory rights to all such
properties as are necessary to the conduct of its operations as presently
conducted, and the Company, directly or indirectly through its subsidiaries,
owns, leases or has possessory rights to all properties as are necessary to
explore, develop and exploit the expansion at the Stillwater Mine in Nye,
Montana and the East Boulder site in Sweet Grass County, Montana (as described
in the Final Prospectus), subject, to the extent such properties consist of
unpatented mining claims, to the paramount title of the United States of
America, to the rights of third parties to have access to the surface of those
claims and to explore and develop leasable minerals from within the boundaries
of those claims except where the failure to own, lease or possess the rights for
any property would not individually or in the aggregate have
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a Material Adverse Effect on the condition (financial or otherwise), earnings,
business or properties of the Company and its subsidiaries, taken as a whole.
Nothing herein shall be deemed to be a representation or warranty by the Company
that any of its unpatented claims (whether owned or leased) contain a discovery
of valuable minerals.
(t) The Company's independent technical consultants, Xxxxx Xxxxxxx &
Company, who have reviewed the proven and probable ore reserves located at
Stillwater in Nye, Montana and East Boulder, Sweet Grass County, Montana as of
December 31, 1997 and 1998 set forth in and incorporated by reference in the
Final Prospectus are experts (as such term is used in Section 11(b)(3) of the
Act) in the field of mining engineering and have consented to being named in the
Registration Statement.
(u) The information set forth and incorporated by reference in the
Registration Statement and the Final Prospectus relating to the proven and
probable ore reserves located at the Stillwater Mine in Nye, Montana and East
Boulder, Sweet Grass County, Montana as of December 31, 1997 and 1998 has been
prepared materially in accordance with methods generally applied in the mining
industry and such proven and such probable ore reserves information conforms as
to form in all material respects to the rules and regulations of the Commission.
2. Purchase and Conversion of Notes. Subject to the terms and conditions
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and in reliance upon the representations and warranties herein set forth:
(a) The Underwriter agrees to surrender for conversion into Common
Stock prior to 5:00 P.M., New York City time, prior to or on April 28, 1999, all
Notes purchased by the Underwriter pursuant to Section 4 hereof or otherwise
acquired by such Underwriter. The shares of Common Stock issued to the
Underwriter upon the conversion of Notes are referred to as the "Conversion
Securities."
(b) If any Notes have not been surrendered for conversion prior to
5:00 P.M., New York City time, on April 28, 1999, at the option of the Company,
exercisable by giving notice in writing to the Underwriter not later than 8:00
P.M., New York City time, on April 28, 1999, the Company shall sell to the
Underwriter, and the Underwriter shall purchase from the Company, at a purchase
price of $18.59 per share, such number of shares of Common Stock as shall be
specified in such notice (but, in each case, not in excess of such number of
shares of Common Stock as would have been issuable upon the conversion of all
Notes not surrendered for conversion). The shares of Common Stock to be
purchased pursuant to this Section 2(b) are referred to as the "Purchased
Securities" and, together with the Conversion Securities, the "Securities."
(c) It is understood that the Underwriter intends to resell the
Securities from time to time at prices prevailing in the open market. On or
prior to May 13, 1999 (the fifteenth day after April 28, 1999), the Underwriter
shall remit to the Company 50% of the excess, if any, of (i) the
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aggregate proceeds received by such Underwriter from the sale of Purchased
Securities (net of transfer taxes, if any, and customary and reasonable selling
commissions and other selling expenses) over (ii) an amount equal to the average
cost to the Underwriter of purchasing the Purchased Securities pursuant to
paragraph (b) above multiplied by the number of Purchased Securities. Upon
completion of the sale of the Purchased Securities, the Underwriter shall
furnish to the Company a statement setting forth the aggregate proceeds received
on the sale thereof and the applicable transfer taxes, if any, and the customary
and reasonable selling commissions and other selling expenses. For purposes of
the foregoing determination, any Purchased Securities not sold by or for the
account of the Underwriter prior to the close of business on the tenth day after
the Redemption Date shall be deemed to have been sold on such tenth day for an
amount equal to the last reported sale price of the Common Stock on such day.
Nothing contained herein shall limit the right of the Underwriter, in its
discretion, to determine the price or prices at which, or the time or times
when, any Securities shall be sold, whether or not prior to the Redemption Date
and whether or not for long or short account.
Delivery of and payment for the Purchased Securities shall be made at
10:00 A.M., New York City time, on May 3, 1999, which date and time may be
postponed by agreement between the Underwriter and the Company (such date and
time of delivery and payment for the Purchased Securities being herein called
the "Closing Date"). Delivery of the Purchased Securities shall be made to the
Underwriter against payment by the Underwriter of the purchase price thereof to
or upon the order of the Company by wire transfer payable in same-day funds to
an account specified by the Company. Delivery of the Purchased Securities shall
be made through the facilities of The Depository Trust Company unless the
Underwriter shall otherwise instruct. The closing of the purchase and sale of
the Purchased Securities shall be made at the office of Xxxxx, Xxxxxx & Xxxxxx,
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000.
3. Compensation. As compensation for the commitment of the Underwriter
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hereunder, the Company will pay to the Underwriter an amount equal to the sum of
$308,538 plus (i) an additional $0.65 per share if the Underwriter purchases
pursuant to Section 2(b) hereof more than 143,881 shares and less than 719,405
shares of Common Stock or (ii) an additional $0.84 per share if the Underwriter
purchases pursuant to Section 2(b) hereof at least 719,405 shares of Common
Stock.
Such compensation shall be paid to the Underwriter by wire transfer
payable in same-day funds to an account specified by the Underwriter, on (A) if
the Underwriter is required to purchase any Purchased Securities, the Closing
Date, or (B) otherwise, as soon as practicable after the Closing Date (but in no
event later than two Business Days thereafter).
4. Additional Purchases. The Underwriter may purchase Notes, in the open
--------------------
market or otherwise, in such amounts and at such prices as the Underwriter may
deem advisable. All Notes so purchased will be converted by the Underwriter
into Common Stock in accordance
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with Section 2(a) hereof. The Common Stock acquired by the Underwriter upon
conversion of any Notes acquired pursuant to this Section 4 may be sold at any
time or from time to time by the Underwriter. It is understood that, for the
purpose of stabilizing the price of the Common Stock or otherwise, the
Underwriter may (but will not be obligated to) make purchases and sales of
Common Stock, in the open market or otherwise, for long or short account, on
such terms as they may deem advisable and they may over allot in arranging
sales.
5. Agreements. The Company agrees with the Underwriter that:
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(a) The Company will use its best efforts to cause any amendment to
the Registration Statement, if not effective at the Execution Time, to become
effective. Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or supplement
(including the Final Prospectus or any Preliminary Final Prospectus) to the
Basic Prospectus unless the Company has furnished you a copy for your review
prior to filing and will not file any such proposed amendment or supplement to
which you reasonably object in writing; provided, however, that the preceding
clause shall not apply to the filing of any document required to be filed by the
Company under the Exchange Act that upon filing is deemed to be incorporated by
reference in the Registration Statement, except that the Company shall, to the
extent practicable, furnish you a copy of any such document a reasonable time
prior to filing. Subject to the foregoing sentence, if the filing of the Final
Prospectus is otherwise required under Rule 424(b), the Company will cause the
Final Prospectus, properly completed, and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to the
Underwriter of such timely filing. The Company will promptly advise the
Underwriter (1) when any amendments to the Registration Statement, if not
effective at the Execution Time, shall have become effective, (2) when the Final
Prospectus, and any supplement thereto, shall have been filed (if required) with
the Commission pursuant to Rule 424(b), (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement shall
have been filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement or for any supplement to
the Final Prospectus or for any additional information, (5) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (6) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any
such stop order or the suspension of any such qualification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Final Prospectus as then supplemented would include any untrue statement of
a material fact or omit to state any material fact
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necessary to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend the
Registration Statement or supplement the Final Prospectus to comply with the Act
or the Exchange Act or the respective rules thereunder, the Company promptly
will (1) notify the Underwriter of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section 5,
an amendment or supplement which will correct such statement or omission or
effect such compliance and (3) supply any supplemented Final Prospectus to you
in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Underwriter an earnings statement or
statements of the Company and its subsidiaries which will satisfy the provisions
of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Underwriter and counsel for the
Underwriter, without charge, five signed copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus, by the
Underwriter or a dealer may be required by the Act, as many copies of each
Preliminary Final Prospectus and the Final Prospectus and any supplement thereto
as the Underwriter may reasonably request. The Company will pay the expenses of
printing or other production of all documents relating to the transactions
contemplated hereby. The Company will pay all transfer taxes as may be imposed
on the Underwriter in connection with their purchase of Notes pursuant hereto.
(e) The Company will use its best efforts to qualify the Securities
for sale under the laws of such jurisdictions as the Underwriter may designate
and will maintain such qualifications in effect so long as required for the
distribution of the Securities; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now so
qualified or to execute a general consent to service of process in any state or
to otherwise subject itself to taxation (other than stock transfer taxes) in
connection with any such qualification.
(f) The Company will mail or cause to be mailed the Notices of
Redemption by first class mail to the registered holders of the Notes as of the
close of business on the Required Mailing Dates, which mailing will conform to
the requirements of the Indenture. The Company will not withdraw or revoke the
Notices of Redemption or attempt to do so.
(g) The Company will advise the Underwriter daily of the amount of
Notes surrendered in the previous day for redemption or for conversion.
(h) The Company will not take any action the effect of which would be
to require an adjustment in the conversion price of the Notes.
(i) The Company will not, prior to the Redemption Date (and, if the
aggregate number of the Securities purchased pursuant to Section 3 hereof
exceeds 431,642 shares, for an
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additional period of 90 days following the Redemption Date), without the prior
written consent of Xxxxxxx Xxxxx Xxxxxx Inc., offer, sell or contract to sell,
or otherwise dispose of (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company) directly or indirectly, or announce the offering of,
any other shares of Common Stock (other than the Securities) or any securities
convertible into, or exchangeable for, shares of Common Stock (other than any
such sale or disposition relating to the grant of options to purchase shares of
Common Stock under the Company's existing Stock Option Plans or the exercise of
options granted under the Company's existing stock option plans); provided,
however, that the provisions of this paragraph shall not prevent the conversion
or exchange pursuant to their terms of any securities of the Company, including
the Notes, outstanding at the Execution Time into or for other shares of Common
Stock or any other securities convertible into, or exchangeable for, shares of
Common Stock.
6. Conditions to the Obligations of the Underwriter. The obligations of
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the Underwriter to convert Notes and to purchase any Purchased Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the Execution Time, each Effective Date
occurring after the Execution Time, the Redemption Date and, as to the purchase
of the Purchased Securities, the Closing Date, to the accuracy of the statements
of the Company made in any certificates pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) If filing of the Final Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
shall have been filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) On the date of this Agreement and on the Closing Date, the Company
shall have furnished to the Underwriter the opinion of Xxxxx, Xxxxxx & Xxxxxx,
L.L.P., counsel for the Company, dated the date of this Agreement and the
Closing Date, respectively, to the effect that:
(i) the Company has been duly incorporated and is validly existing
and in good standing under the laws of the State of Delaware; the Company
has corporate power and authority to conduct its business as described in
the Prospectus; the Company is duly qualified to do business and is, if
applicable, in good standing in each jurisdiction in which it owns or
leases a material amount of real property;
(ii) the Company's authorized equity capitalization is as set forth
in the Final Prospectus; the capital stock of the Company conforms in all
material respects to the description thereof contained in the Final
Prospectus; the outstanding shares of Common
11
Stock have been duly and validly authorized and issued and are fully paid
and nonassessable; the outstanding Notes have been duly and validly
authorized and issued and constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture, enforceable in
accordance with their terms except as enforcement thereof may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium
and other laws affecting the enforcement of creditors' rights and by
general equitable principles; assuming the mailing of the Notices of
Redemption in accordance with Section 1(c) and 5(f) hereof and any further
assumptions agreed upon by the parties, all the Notes will have been duly
called for redemption at the respective dates of mailing such Notices of
Redemption and the right to convert the Notes into shares of Common Stock
will expire at 5:00 P.M., New York City time, on April 28, 1999; the shares
of Common Stock issuable upon conversion of the Notes have been duly and
validly authorized and, when issued and delivered upon conversion of any
Notes pursuant to this Agreement, will be fully paid and nonassessable; the
Purchased Securities have been duly and validly authorized and, when issued
and delivered to and paid for by the Underwriter pursuant to this
Agreement, will be fully paid and nonassessable; the Conversion Securities
(and, for the opinion to be delivered on the Closing Date only, the
Purchased Securities) are duly listed, and admitted and authorized for
trading, subject to official notice of issuance, on the American Stock
Exchange; the certificates for the Securities are in valid and sufficient
for in; the holders of outstanding shares of capital stock of the Company
are not entitled to statutory preemptive rights to subscribe for the
Securities or the shares of Common Stock issuable upon conversion of the
Notes; and, except as set forth in the Final Prospectus, to our knowledge
there are no options, warrants or other rights to purchase or agreements to
issue, or rights to convert any obligations into or exchange any securities
for, shares of capital stock of or ownership interests in the Company, are
outstanding;
(iii) this Agreement has been duly authorized, executed and delivered
by the Company;
(iv) the call of the Notes for redemption, the conversion or
redemption thereof, the issue and sale of the Securities, the execution,
delivery and performance by the Company of this Agreement and the
consummation by the Company of the transactions contemplated herein and
compliance by the Company with its obligations hereunder will not result in
a breach or violation of any of the terms and provisions of, or constitute
a default under, any statute, any agreement or instrument known to such
counsel to which the Company or any subsidiary is a party or by which it is
bound or to which any of the property of the Company or any subsidiary is
subject, the Company's or any subsidiary's Articles of Incorporation, as
amended to date, or by-laws, or any order, rule or regulation known to such
counsel of any court or governmental agency or body having jurisdiction
over the Company or any subsidiary or any of their respective properties;
and no consent, approval, authorization or order of, or filing with, any
court or governmental agency or body is required for the
12
consummation of the transactions contemplated by this Agreement, except
such as have been obtained under the Act and such as may be required under
state securities laws in connection with the purchase and distribution of
the Shares by the Underwriter; provided that no opinion is called for with
respect to any such consent, approval, authorization or order required to
be obtained under the Act and the applicable rules and regulations of the
Commission thereunder that have been obtained or as may be required under
state securities laws or Blue Sky Laws of the various states; and
(v) to the knowledge of such counsel, there is no pending action, suit
or proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of its subsidiaries or
its or their property of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the Final
Prospectus, and there is no franchise, contract or other document of a
character required to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit thereto, which is not described,
incorporated by reference or filed as required;
(vi) the Registration Statement has become effective under the Act;
any required filing of the Basic Prospectus, any Preliminary Final
Prospectus and the Final Prospectus, and any supplements thereto, pursuant
to Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b); to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued,
no proceedings for that purpose have been instituted or threatened and the
Registration Statement and the Final Prospectus (other than the financial
statements and other financial and reserve information contained therein,
as to which such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act and the
Exchange Act and the respective rules thereunder; and the documents from
which information is incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements of the
Act and of the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder (other than the financial statements and other
financial data therein, as to which such counsel need express no opinion).
Such counsel may disclaim responsibility for, and state that they have
not independently verified, the accuracy, completeness or fairness of the
financial statements, the notes thereto, and the other financial and reserve and
operating data included or incorporated by reference in the Registration
Statement and Final Prospectus, and have not examined the accounting, financial,
reserve or operating records from which such financial statements, notes and
data were derived. Such counsel may note that, while certain portions of the
Registration Statement and Final Prospectus (including financial statements, the
notes thereto, and other financial and reserve
13
information) have been included on the authority of "experts" (as defined in the
Act), such counsel are not such experts with respect to any portion of the
Registration Statement and Final Prospectus, including, without limitation, such
financial statements, the notes thereto, or other financial or reserve and
operating data included or incorporated by reference therein. Subject to the
foregoing, such counsel shall state that such counsel has participated in
conferences with the officers and other representatives of the Company,
representatives of the independent accountants for the Company, representatives
of the experts referred to above, and the Underwriter and its counsel, at which
the contents of the Registration Statement and Final Prospectus and related
matters were discussed and, although such counsel is not passing upon, and does
not assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in Registration Statement and the Final Prospectus and have
not made any independent check or verification thereof, during the course of
such participation (relying as to factual matters as to materiality to a large
extent upon the statements of officers and other representatives of the
Company), no facts came to such counsel's attention that caused such counsel to
believe that on the Effective Date or at the Execution Time the Registration
Statement contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Final Prospectus, as of its date
and on the Closing Date contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they are made,
not misleading (except that such statements by such counsel shall not be deemed
to include any statement with respect to any financial information or other
financial or reserve or operating data).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the States of
Delaware or Colorado or the Federal laws of the United States, to the extent
they deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriter and (B) as to matters of fact, to
the extent they deem proper, on certificates of responsible officers of the
Company and public officials. References to the Final Prospectus in this
paragraph (b) include any supplements thereto at the Closing Date. The opinion
of such counsel shall be rendered to the Underwriter at the request of the
Company and shall so state therein.
(c) The Company shall have furnished to the Underwriter the opinion of
Xxxxx, Xxxxxxxx, Xxxxxxx & Xxxxxxxx, special regulatory counsel for the Company,
dated the Closing Date, to the effect that:
(i) to the best knowledge of such counsel, except where the lack of
possession would not have a Material Adverse Effect on the financial
condition of the Company, the Company has all necessary consents,
approvals, authorizations, orders, registrations, qualifications, licenses
and permits of and from all public, regulatory or governmental
14
agencies and bodies to own, lease and operate its properties and conduct
its business as now being conducted and as described in the Final
Prospectus; and
(ii) the descriptions in the Final Prospectus of statutes and
regulations described therein are accurate in all material respects and
fairly present the information required to be shown.
(d) On the date of this Agreement and on the Closing Date, the
Underwriter shall have received from Winston & Xxxxxx, counsel for the
Underwriter, such opinion or opinions, dated the date of this Agreement and the
Closing Date, respectively, and addressed to the Underwriter, with respect to
the issuance and sale of the Securities, the Registration Statement, the Final
Prospectus (together with any supplements thereto) and other related matters as
the Underwriter may reasonably require, and the Company shall have furnished to
such counsel such documents as they request for the purpose of enabling them to
pass upon such matters. The opinion or opinions of such counsel shall be
rendered to the Underwriter at the request of the Company and shall so state
therein.
(e) On the date of this Agreement, on each Effective Date occurring
after the Execution Time and on the Closing Date, the Company shall have
furnished to the Underwriter a certificate of the Company, signed by the Chief
Executive Officer or the Vice President and the principal financial or
accounting officer of the Company, dated the date of delivery, to the effect
that the signers of such certificate have carefully examined the Registration
Statement, the Final Prospectus, any supplements to the Final Prospectus and
this Agreement and:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the date of such certificate as
if made on the date of such certificate 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 date of such certificate;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included
or incorporated by reference in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(f) At the Execution Time, on each Effective Date occurring after
the Execution Time on which financial information is included or incorporated in
the Registration Statement or
15
the Prospectus and on the Closing Date, PricewaterhouseCoopers, L.L.P. shall
have furnished to the Underwriter a letter, dated respectively as of the
Execution Time, each such Effective Date and as of the Closing Date, in form and
substance satisfactory to the Underwriter, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations thereunder and containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to Underwriter with respect to the financial statements and
certain financial information contained in or incorporated by reference in the
Registration Statement and Prospectus.
References to the Final Prospectus in this paragraph (g) include any
supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (g) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any supplement thereto) the
effect of which, in any case referred to in clause (i) or (ii) above, is, in the
sole judgment of the Underwriter, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto).
(h) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such rating that does
not indicate the direction of the possible change.
(i) The Securities shall have been approved for listing on the
American Stock Exchange, subject to official notice of issuance, and
satisfactory evidence of such action shall have been provided to the
Underwriter.
(j) The Company shall have furnished to the Underwriter such further
information, certificates and documents as the Underwriter may reasonably
request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably
16
satisfactory in form and substance to the Underwriter and counsel for the
Underwriter, this Agreement and all obligations of the Underwriter hereunder may
be canceled at, or at any time prior to, the Closing Date by the Underwriter.
Notice of such cancellation shall be given to the Company in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Xxxxx, Xxxxxx & Xxxxxx LLP, counsel for the Company,
at 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx, 00000 on the Closing
Date.
7. Reimbursement of Underwriter's Expense. If the sale of the Securities
--------------------------------------
provided for herein is not consummated because any condition to the obligations
of the Underwriter set forth in Section 6 hereof is not satisfied other than by
reason of a breach by the Underwriter, because of any termination pursuant to
Section 10 hereof or because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with any provision hereof
other than by reason of a default by the Underwriter, the Company will reimburse
the Underwriter on demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by the
Underwriter in connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify and hold harmless the Underwriter,
and each person who controls the Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the registration statement for the registration of the Securities as originally
filed or in any amendment thereof, or in the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein, a material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances under
which they were made, not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by the
Underwriter specifically for inclusion therein; provided, further, that the
foregoing indemnity with respect to any untrue statement contained in or
omission from the Basic Prospectus or Preliminary Final Prospectus shall not
inure
17
to the benefit of the Underwriter (or any of the directors, officers, employees
and agents of the Underwriter or any person controlling the Underwriter) from
whom the person asserting any such loss, claim, damage or liability purchased
the Securities which are the subject thereof if such person did not receive a
copy of the Final Prospectus (or the Final Prospectus as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) at or prior to the confirmation of the sale of such Securities to such
person in any case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in such Basic Prospectus or
Preliminary Final Prospectus was corrected in the Final Prospectus (or the Final
Prospectus as so amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), and it is finally judicially determined that
such delivery was required to be made under the Act and was not so made. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signs the Registration
Statement, each person who controls the Company within the meaning of either the
Act or the Exchange Act, and each other officer, employee and agent of the
Company, to the same extent as the foregoing indemnity from the Company to the
Underwriter, but only with reference to written information relating to the
Underwriter furnished to the Company by the Underwriter specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which the Underwriter
may otherwise have. The Company acknowledges that the language in the
paragraphs under "Standby Arrangements" related to (i) over-allotment,
stabilization and covering transactions and (ii) the services the Underwriter
has provided to the Company, constitute the only information furnished in
writing by the Underwriter for inclusion in any Preliminary Final Prospectus or
the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party
18
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one firm to act as separate
counsel (plus one local counsel in each applicable jurisdiction) in connection
with any proceeding or related proceedings in the same jurisdiction) if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, 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, (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall authorize in writing the
indemnified party to employ separate counsel at the expense of the indemnifying
party. An indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriter agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and the Underwriter
may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and by the Underwriter on the
other from the offering of the Securities; provided, however, that in no case
shall the Underwriter be responsible for any amount in excess of the fees
payable by the Company to the Underwriter pursuant to Section 3 hereof. If the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the Company and the Underwriter shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and of the Underwriter on the other in
connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the sum of (i) the aggregate Redemption
Price for the Notes converted by the Underwriter pursuant to Section 2(a) hereof
and (ii) the amount paid by the Underwriter to the Company pursuant to Section
2(b) hereof (less the total fees payable by the Company to the Underwriter
pursuant to Section 3 hereof), and benefits received by the Underwriter shall be
deemed to be equal to the total fees payable by the Company to the Underwriter
pursuant to Section 3 hereof. Relative fault shall be determined by reference
to, among other things, whether any untrue or any alleged untrue
19
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one hand or
the Underwriter on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriter agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Promptly after receipt by a party
entitled to contribution under this Section 8 of notice of the commencement of
any action, such party will, if a claim for contribution in respect thereof is
to be made against another party or parties under this paragraph (d), notify
such party or parties in writing of the commencement thereof, but the failure so
to notify such party or parties (i) will not relieve such party or parties from
liability under this paragraph (d) unless and to the extent it or they did not
otherwise learn of such action and such failure results in the forfeiture by
such party or parties of substantial rights and defenses and (ii) will not, in
any event, relieve such party or parties from any obligations to any party
entitled to contribution other than the contribution obligation provided in this
paragraph (d). Notwithstanding the provisions of this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 8, each person
who controls the Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of the Underwriter
shall have the same rights to contribution as the Underwriter, and each person
who controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement, each director of the Company and each other officer, employee or
agent of the Company shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of this paragraph
(d).
9. Soliciting Conversions. The Underwriter may assist the Company in
----------------------
soliciting conversion of the Notes by the holders thereof but shall not be
entitled to compensation by the Company for any such assistance.
10. Termination. This Agreement shall be subject to termination in the
-----------
absolute discretion of the Underwriter, by notice given to the Company at any
time prior to the Closing Date, if at any time prior to such time (i) trading in
the Company's Common Stock shall have been suspended by the Commission or the
American Exchange, trading in the Notes shall have been suspended by the
Commission or trading in securities generally on the New York Stock Exchange or
the American Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on either of such Exchanges, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Underwriter, impracticable or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Final Prospectus (exclusive of any supplement thereto).
20
11. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriter set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive the conversion of any Notes and the delivery of and payment for
any Securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Underwriter, will be mailed,
delivered or telefaxed to the Xxxxxxx Xxxxx Xxxxxx Inc. General Counsel (fax
no.: (000) 000-0000) and confirmed to the General Counsel, Xxxxxxx Xxxxx Xxxxxx,
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel;
or, if sent to the Company, will be mailed, delivered or telefaxed to Xxxxx X.
Xxxxxx (fax no.: (000) 000-0000) and confirmed at Xxxxx, Xxxxxx & Xxxxxx, 000
Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, attention Xxxx Xxxxxx.
13. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
--------------
accordance with the laws of the State of New York.
15. Counterparts. This Agreement may be signed in one or more
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only
--------
and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement,
-----------
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date.
21
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement and any post-effective amendment or amendments thereto became or
become effective and each date after the date hereof on which a document
incorporated by reference in the Registration Statement is filed.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus, together
with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended.
"Rule 415" and "Rule 424" refer to such rules under the Act.
22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the Underwriter.
Very truly yours,
Stillwater Mining Company
By: /s/ Xxxxx X. Xxxxxx
__________________________________________
Name: Xxxxx X. Xxxxxx
_____________________________________
Title: Vice President and Chief Financial
Officer
_____________________________________
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
Xxxxxxx Xxxxx Xxxxxx Inc.
By: /s/ X. Xxxxxxxxx Xxxxxx
____________________________________
Name: X. Xxxxxxxxx Xxxxxx
_______________________________
Title: Managing Director and
Co-Head of Metals and Mining
______________________________
23
