Exhibit 1.1
Execution Copy
Coeur d'Xxxxx Xxxxx Corporation
$160,000,000 1.25% Convertible Senior Notes Due 2024
Underwriting Agreement
January 7, 2004
Deutsche Bank Securities Inc.
As Representative of the Underwriters
named in Schedule I hereto
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Coeur d'Xxxxx Xxxxx Corporation, an Idaho corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters)" an aggregate
of $160,000,000 principal amount of its 1.25% Convertible Senior Notes due 2024
(the "Firm Securities"). The respective amounts of the Firm Securities to be so
purchased by the Underwriters are set forth opposite their names in Schedule I
hereto.
As the representative of the Underwriters (the "Representative"), you have
advised the Company (a) that you are authorized to enter into this Agreement on
behalf of the Underwriters, and (b) that the Underwriters are willing, acting
severally and not jointly, to purchase the numbers of Firm Securities set forth
opposite their respective names in Schedule I, plus their pro rata portion, as
set forth on Schedule II hereto, of an aggregate of up to an additional
$20,000,000 principal amount of its 1.25% Notes due 2024 (the "Optional
Securities") if you elect to exercise the over-allotment option granted to you
in whole or in part for the accounts of the Underwriters. The Firm Securities
and the Optional Securities (to the extent the aforementioned option is
exercised) are herein collectively called the "Securities." The Securities are
convertible into common stock, par value $1.00 per share of the Company ("Common
Stock").
The Securities will be issued under an indenture, dated as of the Firm
Securities Closing Date (as defined herein), among the Company, as issuer, and
The Bank of New York, as Trustee (the "Indenture").
The Company has prepared and filed in conformity with the requirements of
the Securities Act of 1933, as amended (the "Securities Act"), and the published
rules and Regulations thereunder (the "Rules") adopted by the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3 (No.
333-111074), including a related prospectus (the "Base Prospectus") relating to
Common Stock, preferred stock, debt securities and warrants of the Company that
may be sold from time to time by the Company in accordance with Rule 415 of the
Securities Act. Copies of such Registration Statement (including all documents
deemed incorporated by reference therein) and of the related Base Prospectus
have heretofore been delivered by the Company or are otherwise available to you.
The term "Shelf Registration Statement" as used in this Agreement means the
registration statement, including all financial statements, exhibits and
documents filed therewith or incorporated by reference therein, as amended from
time to time. The term "Rule 462(b) Registration Statement" means the
registration statement increasing the size of the offering pursuant to Rule
462(b) of the Securities Act. The Rule 462(b) Registration Statement and the
Shelf Registration Statement are referred to collectively herein as the
"Registration Statement." The term "Preliminary Prospectus" means any
preliminary prospectus included in the Registration Statement or filed with the
Commission pursuant to Rule 424 of the rules and regulations of the Commission
under the Securities Act, or any preliminary prospectus supplement used prior to
the filing of the Prospectus Supplement (as defined below). The term
"Prospectus" means the Base Prospectus, any Preliminary Prospectus and any
amendments or further supplements to such prospectus, including, without
limitation, the final prospectus supplement (the "Prospectus Supplement"), filed
pursuant to Rule 424(b) with the Commission in connection with the proposed sale
of the Securities and the proposed issuance of Common Stock upon conversion of
the Securities contemplated by this Agreement through the date of such
Prospectus Supplement. The term "Effective Date" shall mean each date that the
Registration Statement and any post effective amendment or amendments thereto
became or become effective. Unless otherwise stated herein, any reference herein
to the Registration Statement and the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Securities Act, which were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") on or before the date
hereof or are so filed hereafter. Any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement or the
Prospectus shall be deemed to refer to and include any such document filed or to
be filed under the Exchange Act after the date of the Registration Statement or
Prospectus, as the case may be, and deemed to be incorporated therein by
reference.
The Company understands that the Underwriters propose to make a public
offering of the Securities, as set forth in and pursuant to the Prospectus, as
soon after each of the Firm Securities Closing Date and the Optional Securities
Closing Date, if any (each as defined in Section 2(c)), as the Underwriters deem
advisable.
The Company hereby confirms that the Underwriters and dealers have been
authorized to distribute or cause to be distributed each Prospectus and are
authorized to distribute the Prospectus (as from time to time amended or
supplemented if the Company furnishes amendments or supplements thereto to the
Underwriters).
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In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters as of the date hereof, as of
the Firm Securities Closing Date and as of each Optional Securities Closing Date
(if any), as follows:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act and has filed with the Commission the Registration
Statement on such form, including a Base Prospectus, for registration under the
Securities Act of the offering and sale of the Securities, and the Company has
used a Preliminary Prospectus. Such Registration Statement is effective. When
the Registration Statement or any amendment thereof or supplement thereto was or
is declared effective or filed, as the case may be, it (i) complied or will
comply, in all material respects, with the requirements of the Securities Act,
the Rules and the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act") and (ii) 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. When any
related Preliminary Prospectus was first filed with the Commission (whether
filed as part of the Registration Statement or any amendment thereto or pursuant
to Rule 424(a) of the Rules) and when any amendment thereof or supplement
thereto was first filed with the Commission, such Preliminary Prospectus as
amended or supplemented (i) complied in all material respects with the
applicable provisions of the Securities Act, the Rules and the Trust Indenture
Act and (ii) did 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. If applicable, each Preliminary
Prospectus and the Prospectus delivered to the Underwriters for use in
connection with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T. Notwithstanding the foregoing, none of the
representations and warranties in this Section 1(a) shall apply to statements
in, or omissions from, the Registration Statement or the Prospectus made in
reliance upon, and in conformity with, information herein or otherwise furnished
in writing by the Underwriters for use in the Registration Statement or the
Prospectus. With respect to the preceding sentence, the Company acknowledges
that the only information furnished in writing by the Underwriters for use in
the Registration Statement or the Prospectus is the statements contained in the
second paragraph under the caption "Underwriting" in the Prospectus Supplement.
(b) The Registration Statement is effective under the
Securities Act and no stop order preventing or suspending the effectiveness of
the Registration Statement or suspending or preventing the use of the Prospectus
has been issued by the Commission and no proceedings for that purpose have been
instituted or, to the Company's knowledge, are threatened under the Securities
Act. Any required filing of the Prospectus and any supplement thereto pursuant
to Rule 424(b) of the Rules has been or will be made in the manner and within
the time period required by such Rule 424(b).
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(c) The documents incorporated by reference in the
Registration Statement and the Prospectus, at the time they became effective or
were filed with the Commission, as the case may be, complied in all material
respects with the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder, and none
of such documents contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, and any further documents so filed and incorporated
by reference in the Registration Statement and the Prospectus, when such
documents become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they are made, not misleading.
(d) The consolidated financial statements of the Company
(including all notes and schedules thereto) included or incorporated by
reference in the Registration Statement and Prospectus present fairly the
financial position of the Company and its consolidated subsidiaries at the dates
indicated and the statement of operations, stockholders' equity and cash flows
of the Company and its consolidated subsidiaries for the periods specified; and
such consolidated financial statements and related schedules and notes thereto,
and the unaudited financial information filed with the Commission as part of the
Registration Statement, have been prepared in conformity with generally accepted
accounting principles, consistently applied throughout the periods involved. The
summary and selected financial data included in the Prospectus present fairly
the information shown therein as at the respective dates and for the respective
periods specified and have been presented on a basis consistent with the
consolidated financial statements set forth in the Prospectus and other
financial information. The financial information included in or incorporated in
the Registration Statement and the Prospectus complies with the requirements of
Regulation G and Item 10 of Regulation S-K of the Commission.
(e) KPMG LLP, whose reports are filed with the Commission as a
part of the Registration Statement, are and, during the periods covered by its
reports, were independent public accountants as required by the Securities Act
and the Rules.
(f) Each of the Company and its significant subsidiaries, as
such term is defined in Rule 1-02 of Regulation S-X (the "Significant
Subsidiaries"), is duly organized, validly existing and in good standing under
the laws of its respective jurisdiction of incorporation or organization. Each
of the Company and each such subsidiary is duly qualified to do business and is
in good standing as a foreign corporation in each jurisdiction in which the
nature of the business conducted by it or location of the assets or properties
owned, leased or licensed by it requires such qualification, except for such
jurisdictions where the failure to so qualify individually or in the aggregate
would not have a material adverse effect on the assets, properties, condition,
financial or otherwise, or in the results of operations, business affairs or
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business prospects of the Company and its subsidiaries considered as a whole (a
"Material Adverse Effect"); and to the Company's knowledge, no proceeding has
been instituted in any such jurisdiction revoking, limiting or curtailing, or
seeking to revoke, limit or curtail, such power and authority or qualification.
(g) Each of the Company and its subsidiaries has all requisite
corporate power and authority, and all necessary authorizations, approvals,
consents, orders, licenses, certificates and permits of and from all
governmental or regulatory bodies or any other person or entity (collectively,
the "Permits"), to own, lease and license its assets and properties and conduct
its business, all of which are valid and in full force and effect, except where
the lack of such Permits, individually or in the aggregate, would not have a
Material Adverse Effect. The Company and each of its subsidiaries has fulfilled
and performed in all material respects all of its material obligations with
respect to such Permits and no event has occurred that allows, or after notice
or lapse of time would allow, revocation or termination thereof or results in
any other material impairment of the rights of the Company thereunder. Except as
may be required under the Securities Act and state and foreign Blue Sky laws, no
other Permits are required to enter into, deliver and perform this Agreement, to
issue and sell the Securities and to issue shares of Common Stock issuable upon
conversion of the Securities.
(h) Each of the Company and its subsidiaries owns or possesses
legally enforceable rights to use all trademarks, trademark applications, trade
names, service marks, copyrights, copyright applications, licenses, know-how and
other similar rights and proprietary knowledge (collectively, "Intangibles")
necessary for the conduct of its business. Neither the Company nor any of its
subsidiaries has received any notice of, or is not aware of, any infringement of
or conflict with asserted rights of others with respect to any Intangibles.
(i) The Company and each of its subsidiaries has good and
marketable title in fee simple to all real property, and good and marketable
title to all other property owned by it, in each case free and clear of all
liens, encumbrances, claims, security interests and defects, except (A) as
disclosed in the Company's filings with the Commission under the Exchange Act
and (B) such as do not materially affect the value of such property and do not
materially interfere with the use made or proposed to be made of such property
by the Company and its subsidiaries. All property held under lease by the
Company and its subsidiaries is held by them under valid, existing and
enforceable leases, free and clear of all liens, encumbrances, claims, security
interests and defects, except such as are not material and do not materially
interfere with the use made or proposed to be made of such property by the
Company and its subsidiaries.
(j) There are no litigation or governmental proceedings to
which the Company or any of its subsidiaries is subject or that is pending or,
to the knowledge of the Company, threatened, against the Company or any of its
subsidiaries that, individually or in the aggregate, might have a Material
Adverse Effect, affect the consummation of this Agreement or that is required to
be disclosed in the Registration Statement and the Prospectus that is not so
disclosed.
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(k) Since the respective dates as of which information is
given in the Registration Statement, as it may be amended or supplemented,
except as described therein, (i) there has not been any change in the assets or
properties, business, results of operations, prospects or condition (financial
or otherwise), of the Company and its subsidiaries taken as a whole, whether or
not arising from transactions in the ordinary course of business which would
have a Material Adverse Effect; (ii) neither the Company nor any of its
subsidiaries has sustained any loss or interference with its assets, businesses
or properties (whether owned or leased) from fire, explosion, earthquake, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental action, order or
decree which would have a Material Adverse Effect; and (iii) since the date of
the latest balance sheet included or incorporated by reference in the
Registration Statement and the Prospectus, neither the Company nor its
subsidiaries has (A) issued any securities or incurred any liability or
obligation, direct or contingent, for borrowed money, except for such
liabilities or obligations incurred in the ordinary course of business, (B)
entered into any transaction not in the ordinary course of business or (C)
except for regular dividends on the Common Stock in amounts per share that are
consistent with past practice, declared or paid any dividend or made any
distribution on any shares of its stock or redeemed, purchased or otherwise
acquired or agreed to redeem, purchase or otherwise acquire any shares of its
capital stock.
(l) There is no document, contract or other agreement required
to be described in the Registration Statement or Prospectus or to be filed as an
exhibit to the Registration Statement which is not described or filed as
required by the Securities Act or Rules. Each description of a contract,
document or other agreement in the Registration Statement and the Prospectus
accurately reflects in all material respects the terms of the underlying
contract, document or other agreement. Each contract, document or other
agreement described in the Registration Statement and Prospectus or listed in
the Exhibits to the Registration Statement or incorporated by reference is in
full force and effect and is valid and enforceable by and against the Company or
its subsidiary, as the case may be, in accordance with its terms. Neither the
Company nor any of its subsidiaries, if a subsidiary is a party, nor to the
Company's knowledge, any other party is in default in the observance or
performance of any term or obligation to be performed by it under any such
agreement, and no event has occurred which with notice or lapse of time or both
would constitute such a default, in any such case which default or event,
individually or in the aggregate, would have a Material Adverse Effect. 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, by the Company or its subsidiary, if a subsidiary
is a party thereto, of any other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which Company or its properties or
business or a subsidiary or its properties or business may be bound or affected
which default or event, individually or in the aggregate, would have a Material
Adverse Effect.
(m) Neither the Company nor any of its subsidiaries is in
violation of any term or provision of its charter or by-laws or of any
franchise, license,
6
permit, judgment, decree, order, statute, rule or regulation, where the
consequences of such violation, individually or in the aggregate, would have a
Material Adverse Effect.
(n) Neither the execution, delivery and performance of this
Agreement by the Company nor the consummation of any of the transactions
contemplated hereby (including, without limitation, the issuance and sale by the
Company of the Securities and the issuance of shares of Common Stock upon
conversion) will give rise to a right to terminate or accelerate the due date of
any payment due under, or conflict with or result in the breach of any term or
provision of, or constitute a default (or an event which with notice or lapse of
time or both would constitute a default) under, or require any consent or waiver
under, or result in the execution or imposition of any lien, charge or
encumbrance upon any properties or assets of the Company or its subsidiaries
pursuant to the terms of, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which either the Company or its subsidiaries or any of their
properties or businesses is bound, or any franchise, license, permit, judgment,
decree, order, statute, rule or regulation applicable to the Company or any of
its subsidiaries or violate any provision of the charter or by-laws of the
Company or any of its subsidiaries, except for such consents or waivers which
have already been obtained and are in full force and effect.
(o) The Company has an authorized capitalization as set forth
in the Prospectus, and all the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable. The shares of Common Stock issuable upon conversion of the
Securities have been duly and validly authorized and reserved for issuance and,
when issued and delivered in accordance with the provisions of the Securities
and the Indenture, will be duly and validly issued, fully paid and
non-assessable and will conform to the description of the Common Stock contained
in the Prospectus. Except as disclosed in the Registration Statement and the
Prospectus, there is no outstanding option, warrant or other right calling for
the issuance of, and there is no commitment, plan or arrangement to issue, any
share of Common Stock of the Company or any of its subsidiaries or any security
convertible into, or exercisable or exchangeable for, such stock. The Common
Stock and the Securities conform in all material respects to all statements in
relation thereto contained in the Registration Statement and the Prospectus.
(p) All outstanding shares of capital stock of each of the
Company's Significant Subsidiaries have been duly authorized and validly issued,
and, except for directors' qualifying shares, are fully paid and nonassessable
and are owned directly by the Company or by another wholly-owned subsidiary of
the Company free and clear of any security interests, liens, encumbrances,
equities or claims, other than those described in the Prospectus.
(q) No holder of any security of the Company has any right,
which has not been waived, to have any security owned by such holder included in
the Registration Statement or to demand registration of any security owned by
such holder for a period of 90 days after the date of this Agreement. An
enforceable written Lockup
7
agreement in the form attached to this Agreement as Annex I ("Lockup Agreement")
has been delivered to the Underwriters by each person listed on Exhibit A
thereto.
(r) The Securities have been duly authorized and, when issued
and delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
Indenture under which they are to be issued, which will be substantially in the
form previously delivered to you. The Indenture has been duly authorized and
duly qualified under the Trust Indenture Act and, when executed and delivered by
the Company and the Trustee, the Indenture will constitute a valid and legally
binding instrument, enforceable in accordance with its terms, subject, as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles. The Securities and the Indenture
will conform to the descriptions thereof in the Prospectus and will be in
substantially the form previously delivered to you.
(s) All necessary corporate action has been duly and validly
taken by the Company to authorize the execution, delivery and performance by the
Company of this Agreement, the issuance and sale by the Company of the
Securities by the Company and the issuance by the Company of the shares of
Common Stock issuable upon conversion of the Securities by the Company. This
Agreement has been duly and validly authorized, executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles.
(t) Neither the Company nor any of its subsidiaries is
involved in any labor dispute nor, to the knowledge of the Company, is any such
dispute threatened, which dispute would have a Material Adverse Effect. The
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its principal suppliers or contractors which would have a
Material Adverse Effect. The Company is not aware of any threatened or pending
litigation between the Company or its subsidiaries and any of its executive
officers which, if adversely determined, could have a Material Adverse Effect
and has no reason to believe that such officers will not remain in the
employment of the Company.
(u) No transaction has occurred between or among the Company
and any of its officers or directors, shareholders or any affiliate or
affiliates of any such officer or director or shareholder that is required to be
described in and is not described in the Registration Statement and the
Prospectus.
(v) The Company has not taken, nor will it take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in, or which has constituted or which might reasonably be
expected to constitute,
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the stabilization or manipulation of the price of the Common Stock or any
security of the Company to facilitate the sale or resale of any of the
Securities.
(w) The Company and each of its Significant Subsidiaries has
filed all Federal, state, local and foreign tax returns which are required to be
filed through the date hereof, which returns are true and correct in all
material respects or has received timely extensions thereof, and has paid all
taxes shown on such returns and all assessments received by it to the extent
that the same are material and have become due. There are no tax audits or
investigations pending, which if adversely determined would have a Material
Adverse Effect; nor are there any material proposed additional tax assessments
against the Company or any of its Significant Subsidiaries.
(x) The shares of Common Stock issuable upon conversion of the
Securities have been duly authorized for listing on the New York Stock Exchange,
subject to official notice of issuance.
(y) The Company has taken no action designed to, or likely to
have the effect of, terminating the registration of the Common Stock under the
Exchange Act or listing on the New York Stock Exchange, nor has the Company
received any notification that the Commission or the New York Stock Exchange is
contemplating terminating such registration or quotation.
(z) The books, records and accounts of the Company and its
subsidiaries accurately, fairly and reasonably reflect the transactions in, and
dispositions of, the assets of, and the results of operations of, the Company
and its subsidiaries. The Company and each of its subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of consolidated financial statements in accordance with generally
accepted accounting principles and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with management's general or
specific authorization and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(aa) The Company and its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in such
amounts as are customary in the businesses in which they are engaged or propose
to engage after giving effect to the transactions described in the Prospectus,
and such policies are in full force and effect.
(bb) Each approval, consent, order, authorization,
designation, declaration or filing of, by or with any regulatory, administrative
or other governmental body necessary in connection with the execution and
delivery by the Company of this Agreement, and the consummation of the
transactions herein contemplated required to be obtained or performed by the
Company (including the qualification of the Indenture under the Trust Indenture
Act but except such additional steps as may be required by the
9
National Association of Securities Dealers, Inc. (the "NASD") or may be
necessary to qualify the Shares for public offering by the Underwriters under
the state securities or Blue Sky laws) has been obtained or made and is in full
force and effect.
(cc) There are no affiliations with the NASD among the
Company's officers, directors or, to the best of the knowledge of the Company,
any five percent or greater stockholder of the Company, except as set forth in
the Registration Statement or otherwise disclosed in writing to the
Underwriters.
(dd) (A) Except as disclosed in the Company's filings with the
Commission under the Exchange Act and (B) as would not, individually or in the
aggregate, have a Material Adverse Effect, (i) each of the Company and each of
its subsidiaries is in compliance in all material respects with all rules, laws
and regulation relating to the use, treatment, storage and disposal of toxic
substances and protection of health or the environment ("Environmental Law")
which are applicable to its business; (ii) neither the Company nor its
subsidiaries has received any notice from any governmental authority or third
party of an asserted claim under Environmental Laws; (iii) each of the Company
and each of its subsidiaries has received all permits, licenses or other
approvals required of it under applicable Environmental Laws to conduct its
business and is in compliance with all terms and conditions of any such permit,
license or approval; (iv) to the Company's knowledge, no facts currently exist
that will require the Company or any of its subsidiaries to make future material
capital expenditures to comply with Environmental Laws; and (v) no property
which is or has been owned, leased or occupied by the Company or its
subsidiaries has been designated as a Superfund site pursuant to the
Comprehensive Environmental Response, Compensation of Liability Act of 1980, as
amended (42 U.S.C. Section 9601, et. seq.) ("CERCLA 1980") or otherwise
designated as a contaminated site under applicable state or local law. Neither
the Company nor any of its subsidiaries has been named as a "potentially
responsible party" under the CERCLA 1980.
(ee) In the ordinary course of its business, the Company
periodically reviews the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries, in the course of
which the Company identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with Environmental Laws, or
any permit, license or approval, any related constraints on operating activities
and any potential liabilities to third parties).
(ff) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of proceeds thereof as
described in the Prospectus, will not be an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "Investment
Company Act").
(gg) The Company or any other person affiliated with or acting
on behalf of the Company including, without limitation, any officer, director,
employee, or agent of the Company or any stockholder thereof acting on behalf of
the Company or its subsidiaries, has not, directly or indirectly, while acting
on behalf of the Company or its
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subsidiaries (i) used any corporate funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political activity; (ii)
made any unlawful payment to foreign or domestic government officials or
employees or to foreign or domestic political parties or campaigns from
corporate funds; (iii) violated any provision of the Foreign Corrupt Practices
Act of 1977, as amended; or (iv) made any other unlawful payment.
(hh) Except as described in the Prospectus or in the documents
incorporated by reference into the Prospectus, the Company has not sold or
issued any shares of, or securities convertible into, Common Stock or a class
similar to Common Stock during the six-month period preceding the date of the
Prospectus, including any sales pursuant to Rule 144A under, or Regulations D or
S, of the Securities Act, other than shares issued pursuant to employee benefit
plans, qualified stock options plans or other employee compensation plans or
pursuant to outstanding options, rights or warrants.
(ii) The Company has fulfilled its obligations, if any, under
the minimum funding standards of Section 302 of the U.S. Employee Retirement
Income Security Act of 1974 ("ERISA") and the regulations and published
interpretations thereunder with respect to each "plan" as defined in Section
3(3) of ERISA and such regulations and published interpretations in which its
employees are eligible to participate and each such plan is in compliance in all
material respects with the presently applicable provisions of ERISA and such
regulations and published interpretations. No "Reportable Event" (as defined in
12 ERISA) has occurred with respect to any "Pension Plan" (as defined in ERISA)
for which the Company could have any liability.
(jj) Each of the Company, its directors and officers has not
distributed and will not distribute prior to the later of (i) the Firm
Securities Closing Date, or the Optional Securities Closing Date, and (ii)
completion of the distribution of the Securities, any offering material in
connection with the offering and sale of the Securities other than any
Preliminary Prospectus, the Prospectus, the Registration Statement and other
materials, if any, permitted by the Securities Act.
(kk) There is and has been no failure on the part of the
Company to comply in all material respects with any provisions of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in
connection therewith that are effective, including Sections 302 and 906 related
to certifications, except for any provisions with which the Company is not
currently required to comply.
2. Purchase, Sale and Delivery of the Firm Securities.
(a) On the basis of the representations, warranties and
covenants herein contained, and subject to the conditions herein set forth, the
Company agrees to sell to the Underwriters and each Underwriter agrees,
severally and not jointly, to purchase, at a price of 96.75% of the principal
amount thereof (the "Purchase Price"), the number of Firm Securities set forth
opposite the name of each Underwriter in Schedule I hereof, subject to
adjustments in accordance with Section 9 hereof.
11
(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company hereby grants an option to the Underwriters to purchase the
Optional Securities at the Purchase Price set forth in Section 2(a). The option
granted hereby may be exercised in whole or in part by giving written notice (i)
at any time before the Firm Securities Closing Date and (ii) only once
thereafter within 30 days after the date of this Agreement, by you, as
Representative of the Underwriters, to the Company setting forth the number of
Optional Securities as to which the Underwriters are exercising the option and
the time and date at which such Securities are to be delivered. The time and
date at which Optional Securities are to be delivered shall be determined by the
Representative but shall not be earlier than three nor later than 10 full
Business Days after the exercise of such option, nor in any event prior to the
Firm Securities Closing Date. "Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in New York City are generally authorized or obligated by law or executive order
to close. If the date of exercise of the option is three or more days before the
Firm Securities Closing Date, the notice of exercise shall set the Firm
Securities Closing Date as the Optional Securities Closing Date. The number of
Optional Securities to be purchased by each Underwriter shall be in the same
proportion to the total number of Optional Securities being purchased as the
number of Firm Securities being purchased by such Underwriter bears to the total
number of Firm Securities, adjusted by you in such manner as to avoid fractional
shares. The option with respect to the Option Securities granted hereunder may
be exercised only to cover over-allotments in the sale of the Firm Securities by
the Underwriters. You, as Representative of the Underwriters, may cancel such
option at any time prior to its expiration by giving written notice of such
cancellation to the Company. To the extent, if any, that the option is
exercised, payment for the Optional Securities shall be made on the Optional
Securities Closing Date in Federal (same day funds) through the facilities of
The Depository Trust Company ("DTC") in New York, New York drawn to the order of
the Company.
(c) The Securities to be purchased by each Underwriter
hereunder will be represented by one or more definitive global notes in
book-entry form which will be deposited by or on behalf of the Company with DTC
or its designated custodian. The Company will deliver the Securities to you for
the account of each Underwriter, against payment by or on behalf of such
Underwriter of the Purchase Price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Company to you at least
forty-eight hours in advance, by causing DTC to credit the Securities to your
account at DTC. The Company will cause the Securities to be made available to
you for checking at least twenty-four hours prior to the Firm Securities Closing
Date (as defined below) at the office of DTC or its designated custodian (the
"Designated Office"). The time and date of such delivery and payment shall be,
with respect to the Firm Securities, 10:00 a.m., New York City time, on January
13, 2004 or such other time and date as Deutsche Bank Securities Inc. and the
Company may agree upon in writing (the "Firm Securities Closing Date"), and,
with respect to the Optional Securities, 10:00 a.m., New York City time, on the
date specified by Deutsche Bank Securities Inc. in the written notice given by
Deutsche Bank Securities Inc. of the Underwriters' election to purchase such
Optional Securities set forth in Section 2(b), or such other time and date as
Deutsche Bank Securities Inc. and the Company may agree
12
upon in writing (the "Optional Securities Closing Date," and together with the
Firm Securities Closing Date, each a "Closing Date").
(d) The documents to be delivered at the Firm Securities
Closing Date by or on behalf of the parties hereto pursuant to Section 6 hereof,
including the cross-receipt for the Securities and any additional documents
requested by the Underwriters pursuant to Section 6(l) hereof, will be delivered
at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Four Times Square,
New York, New York 10036 (the "Closing Location"), and the Securities will be
delivered at the Designated Office, all at the Firm Securities Closing Date. A
meeting will be held at the Closing Location at 1:00 p.m., New York City time,
on the Business Day next preceding the Firm Securities Closing Date, at which
meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto.
3. Offering by the Underwriters.
It is understood that the Underwriters are to make a public offering
of the Firm Securities as soon as you deem it advisable to do so. The Firm
Securities are to be initially offered to the public at the principal amount set
forth in the Prospectus.
It is further understood that you will act as the Representative for
the Underwriters in the offering and sale of the Securities in accordance with a
Master Agreement Among Underwriters entered into by you and the several other
Underwriters.
4. Covenants of the Company.
The Company covenants and agrees as follows:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of this
Agreement, and any amendments thereto, to become effective as promptly as
possible. The Company shall prepare the Prospectus in a form reasonably approved
by the Underwriters and file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the second
Business Day following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by the Rules.
(b) The Company shall promptly advise the Underwriters in
writing (A) when any post-effective amendment to the Registration Statement
shall have become effective or any supplement to the Prospectus shall have been
filed, (B) of any request by the Commission for any amendment of the
Registration Statement or the Prospectus or for any additional information, (C)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of any order preventing or suspending the use
of any preliminary prospectus or the institution or threatening of any
proceeding for that purpose and (D) 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 initiation or threatening of any
proceeding for such purpose. The Company shall not file any amendment of the
Registration Statement or supplement
13
to the Prospectus or any document incorporated by reference in the Registration
Statement unless the Company has furnished the Underwriters a copy for their
review prior to filing and shall not file any such proposed amendment or
supplement to which the Underwriters reasonably object. The Company shall use
its best efforts to prevent the issuance of any such stop order and, if issued,
to obtain as soon as possible the withdrawal thereof.
(c) If, at any time when a prospectus relating to the
Securities or the shares of Common Stock issuable upon conversion of the
Securities is required to be delivered under the Securities Act or the Rules,
any event occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to
state any material fact 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 or supplement the Prospectus to comply with the Securities
Act, the Rules or the Trust Indenture Act, the Company promptly shall prepare
and file with the Commission, subject to the second sentence of Section 4(b), an
amendment or supplement which shall correct such statement or omission or an
amendment which shall effect such compliance.
(d) The Company shall make generally available to its security
holders and to the Underwriters as soon as practicable, but not later than 45
days after the end of the 12 month period beginning at the end of the fiscal
quarter of the Company during which the Effective Date occurs (or 90 days if
such 12 month period coincides with the Company's fiscal year), an earning
statement (which need not be audited) of the Company, covering such 12 month
period, which shall satisfy the provisions of Section 11(a) of the Securities
Act or Rule 158 of the Rules.
(e) The Company shall reasonably cooperate with the
Underwriters and their counsel in endeavoring to qualify the Securities, and the
shares of Common Stock issuable upon conversion of the Securities, for offer and
sale in connection with the offering under the laws of such jurisdictions as the
Underwriters may designate and shall maintain such qualifications in effect so
long as required for the distribution of the Securities; provided, however, that
the Company shall not be required in connection therewith, as a condition
thereof, to qualify as a foreign corporation or to execute a general consent to
service of process in any jurisdiction or subject itself to taxation as doing
business in any jurisdiction.
(f) The Company, during the period when the Prospectus is
required to be delivered under the Securities Act and the Rules or the Exchange
Act, will file all reports and other documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time
periods required by the Exchange Act and the regulations promulgated thereunder.
(g) Without the prior written consent of Deutsche Bank
Securities Inc., for a period of 90 days after the date of this Agreement, the
Company and the individuals listed on Schedule IV hereto shall not issue, sell
or register with the Commission (other than on Form S-8 or on any successor
form), or otherwise dispose of,
14
directly or indirectly, any equity securities of the Company (or any securities
convertible into, exercisable for or exchangeable for equity securities of the
Company), except for (A) those shares of Common Stock set forth in the Lockup
Agreement, (B) the issuance of shares pursuant to the Company's existing stock
option plan or bonus plan as described in the Registration Statement and the
Prospectus, and (C) the issuance of shares of the Company's Common Stock upon
the exercise or conversion of securities of the Company outstanding on the date
hereof and disclosed in the Registration Statement or Prospectus. In the event
that during this period, (A) any shares are issued pursuant to the Company's
existing stock option plan or bonus plan that are exercisable during such 90-day
period or (B) any registration is effected on Form S-8 or on any successor form
relating to shares that are exercisable during such 90-period, the Company shall
use its best efforts to obtain the written agreement of such grantee or
purchaser or holder of such registered securities that, for a period of 90 days
after the date of this Agreement, such person will not, without the prior
written consent of Deutsche Bank Securities Inc., offer for sale, sell,
distribute, grant any option for the sale of, or otherwise dispose of, directly
or indirectly, or exercise any registration rights with respect to, any shares
of Common Stock (or any securities convertible into, exercisable for, or
exchangeable for, any shares of Common Stock) owned by such person.
(h) To furnish to the Trustee, and as required by the
Indenture, to the holders of the Securities, as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries certified by independent public accountants) and, as
soon as practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the effective date
of the Registration Statement), consolidated summary financial information of
the Company and its subsidiaries for such quarter in reasonable detail;
(i) During a period of five years from the effective date of
the Registration Statement to the extent not otherwise available on the
Commission's website (currently available at xxxx://xxx.xxx.xxx), to furnish to
you copies of all reports or other communications (financial or other) furnished
to stockholders, and to deliver to you as soon as they are available, copies of
any reports and financial statements furnished to or filed with the Commission
or any national securities exchange on which the Securities or any class of
securities of the Company is listed;
(j) To reserve and keep available at all times, free of
preemptive rights, shares of Common Stock for the purpose of enabling the
Company to satisfy any obligations to issue shares of its Common Stock upon
conversion of the Securities;
(k) On or before completion of this offering, the Company
shall make all filings required under applicable securities laws and by the New
York Stock Exchange (including any required registration under the Exchange Act)
in connection with the transactions contemplated by this Agreement, the
Securities and the shares of Common Stock issuable upon conversion of the
Securities at any time;
15
(l) Prior to the Firm Securities Closing Date, the Company
will issue no press release or other communications directly or indirectly and
hold no press conference with respect to the Company, the condition, financial
or otherwise, or the earnings, business affairs or business prospects of any of
them, or the offering of the Securities without the prior written consent of the
Underwriters unless in the judgment of the Company and its counsel, and after
notification to the Underwriters, such press release or communication is
required by law;
(m) The Company shall (A) furnish to the Underwriters and
counsel for the Underwriters, without charge, signed copies of the Registration
Statement and the Prospectus (including all exhibits thereto and amendments
thereof) and all amendments thereof (i) prior to 10:00 a.m. New York City Time
on the Business Day next succeeding the date of this Agreement, (ii) so long as
delivery of a prospectus by an underwriter or dealer may be required by the
Securities Act or the Rules in connection with the sale and issuance of the
Securities or the offering of the shares of Common Stock issuable upon
conversion of the Securities and (B) if at such time any event shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in order to comply with
the Securities Act, the Exchange Act or the Trust Indenture Act, to notify you
and upon your request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of an amended
Prospectus or a Prospectus Supplement which will correct such statement or
omission or effect such compliance. If applicable, the copies of the
Registration Statement and Prospectus and each amendment and supplement thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T; and
(n) The Company will apply the net proceeds from the offering
of the Securities in the manner set forth under "Use of Proceeds" in the
Prospectus.
5. Costs and Expenses.
The Company will pay, or reimburse if paid by the Underwriters all
costs, expenses and fees incident to the performance of the obligations of the
Company as provided under this Section and Sections 8 and 11 of this Agreement,
including, without limiting the generality of the foregoing, the following:
accounting fees of the Company; the fees and disbursements of counsel for the
Company; the cost of printing and delivering to, or as requested by, the
Underwriters copies of the Registration Statement, Preliminary Prospectuses, the
Prospectus, this Agreement, the Underwriters' Selling Memorandum, the
Underwriters' Invitation Letter, the Blue Sky Survey and any supplements or
amendments thereto; the filing fees of the Commission; the filing fees
16
and expenses (including legal fees and disbursements) incident to securing any
required review by the NASD of the terms of the sale of the Securities; any fees
incurred in connection with the listing on the New York Stock Exchange of the
shares of Common Stock issuable upon conversion of the Securities; the fees and
expenses of the Trustee and expenses of any agent of the Trustee and the fees
and expenses of counsel for the Trustee in connection with the Indenture and the
Securities; the expenses, including the reasonable fees and disbursements of
counsel for the Underwriters, incurred in connection with the qualification of
the Securities and the shares of Common Stock issuable upon conversion of the
Securities under State securities or Blue Sky laws; and all other costs and
expenses of the Company incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section. The Company
shall not, however, be required to pay for any of the Underwriters expenses
(other than those related to qualification under NASD regulation and State
securities or Blue Sky laws) except that, if this Agreement shall not be
consummated because the conditions in Section 6 hereof are not satisfied, or
because this Agreement is terminated by the Representative pursuant to Section
11 hereof, or by reason of any failure, refusal or inability on the part of the
Company to perform any undertaking or satisfy any condition of this Agreement or
to comply with any of the terms hereof on its part to be performed, unless such
failure, refusal or inability is due primarily to the default or omission of any
Underwriter, the Company shall reimburse the Underwriters for reasonable
out-of-pocket expenses, including reasonable fees and disbursements of counsel,
reasonably incurred in connection with investigating, marketing and proposing to
market the Securities or in contemplation of performing their obligations
hereunder; but the Company shall not in any event be liable to any of the
Underwriters for damages on account of loss of anticipated profits from the sale
by them of the Securities.
6. Conditions of Obligations of the Underwriters.
The obligations of the Underwriters to purchase the Securities are
subject to each of the following terms and conditions:
(a) Notification that all filings related to the Registration
Statement, the Prospectus, and the offering of the Securities required by Rule
424 of the Rules shall have been made within the applicable time period;
(b) No order preventing or suspending the use of any
Prospectus shall have been or shall be in effect and no order suspending the
effectiveness of the Registration Statement shall be in effect and no
proceedings for such purpose shall be pending before or threatened by the
Commission, and any requests for additional information on the part of the
Commission (to be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to the satisfaction of the Commission
and the Underwriters. If the Company has elected to rely upon Rule 430A, Rule
430A information previously omitted from the effective Registration Statement
pursuant to Rule 430A shall have been transmitted to the Commission for filing
pursuant to Rule 424(b) within the prescribed time period and the Company shall
have provided evidence satisfactory to the Underwriters of such timely filing,
or a post-effective
17
amendment providing such information shall have been promptly filed and declared
effective in accordance with the requirements of Rule 430A;
(c) The representations and warranties of the Company
contained in this Agreement and in the certificates delivered pursuant to
Section 6(d) shall be true and correct when made and on and as of the Firm
Securities Closing Date and the Optional Securities Closing Date, if any, as if
made on such date. The Company shall have performed all covenants and agreements
and satisfied all the conditions contained in this Agreement required to be
performed or satisfied by them at or before any Closing Date;
(d) The Underwriters shall have received on the Firm
Securities Closing Date and the Optional Securities Closing Date, if any,
(i) a certificate, addressed to the Underwriters and
dated such closing date, of the chief executive or chief
operating officer and the chief financial officer or chief
accounting officer of the Company, to the effect that: (1) the
representations, warranties and agreements of the Company in
this Agreement were true and correct when made and are true
and correct as of such closing date; (2) the Company has
performed all covenants and agreements and satisfied all
conditions contained herein; (3) they have carefully examined
the Registration Statement and the Prospectus and, in their
opinion (A) as of the Effective Date, the Registration
Statement and Prospectus did not include any untrue statement
of a material fact and did not omit to state a material fact
required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, and (B) since the
Effective Date no event has occurred which should have been
set forth in a supplement or otherwise required an amendment
to the Registration Statement or the Prospectus; (4) no stop
order suspending the effectiveness of the Registration
Statement has been issued and, to their knowledge, no
proceedings for that purpose have been instituted or are
pending under the Securities Act; and (5) Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, counsel to the Underwriters and
Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel to the Company, are
entitled to rely upon such certificate in connection with the
opinions given by such firms pursuant to this Agreement;
(ii) a certificate, addressed to the Underwriters and
dated such closing date, of the chief executive or chief
operating officer and the chief financial officer or chief
accounting officer of the Company, in a form reasonably
acceptable to the Underwriters, to the effect that certain
information contained in the Prospectus is correct in all
material respects; and
18
(iii) certificates, addressed to the Underwriters and
dated such closing date, of each of the managers of operations
of each of the Company's mines, in a form reasonably
acceptable to the Underwriters, to the effect that, all mines
have in place and currently in effect all material permits
(including, e.g., environmental permits) licenses, consents,
approvals, determinations and other authorizations, whether
governmental or private, necessary for the mine to conduct
fully its business and operations, are in full compliance with
all laws, regulations, codes, and other requirements
applicable to the conduct of its business and operations and
is not subject of any investigation or review by any Federal,
state or local regulatory agency, and no mine has received in
the last 24 months any notice from any governmental or other
authority that it is in violation or non-compliance with any
licenses, permits, or other authorizations.
(e) The Underwriters shall have received, at the time this
Agreement is executed and on the Firm Securities Closing Date and the Optional
Securities Closing Date, if any, a signed letter from KPMG LLP addressed to the
Underwriters and dated, respectively, the date of this Agreement and each such
closing date, in form and substance reasonably satisfactory to the Underwriters
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the consolidated
financial statements and certain financial information contained in the
Registration Statement and the Prospectus;
(f) The Underwriters shall have received on the Firm
Securities Closing Date and the Optional Securities Closing Date, if any, from
Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Company, an opinion, substantially
similar to the opinion set forth in Annex II hereto, addressed to the
Underwriters and dated such closing date, and stating in effect that:
(i) The Securities, when issued and
authenticated by the Trustee in accordance with the terms of the Indenture
and delivered to and paid for by you in accordance with the terms of this
Agreement, will be legally valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, subject to
customary exceptions, a registered holder of notes is a beneficiary under
the Indenture;
(ii) The Indenture is the legally valid and
binding agreement of the Company, enforceable in accordance with its
terms, subject to customary exceptions; the Indenture has been qualified
under the Trust Indenture Act of 1939, as amended;
(iii) Neither the execution, delivery and
performance of this Agreement, the issuance and sale of the Securities by
the Company to you pursuant to this Agreement at the Closing Date or the
19
issuance of shares of Common Stock issuable upon conversion of the
Securities do not or will not, as the case may be, and the execution,
delivery and performance of the Indenture by the Company nor the
consummation of any of the transactions contemplated thereby will violate
or conflict with, or result in any contravention of the laws, rules and
regulations of the State of New York and the federal laws of the United
States of America that are, in our experience, generally applicable to
transactions of the nature contemplated by the Agreement (other than
federal or state securities laws, antitrust laws or trade regulation laws,
as to which no opinion is expressed in this paragraph);
(iv) No consent, approval, authorization,
license, registration, qualification or order of any court or governmental
agency or regulatory body is required for the due authorization,
execution, delivery or performance of the Agreement, the Securities and
the Indenture by the Company or the consummation of the transactions
contemplated thereby, except (A) such as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters, as to which we express
no opinion and (B) such as have been obtained under the Securities Act;
(v) To our knowledge based on an officer's
certificate of the Company, there is no action, suit, proceeding or other
investigation, before any court or before or by any public body or board
pending or threatened against, or involving the assets, properties or
businesses of, the Company which is required to be disclosed in the
Registration Statement and the Prospectus and is not so disclosed or which
could reasonably be expected to have a material adverse effect on the
assets, properties, condition, financial or otherwise, or in the results
of operations, business affairs or business prospects of the Company and
its subsidiaries considered as a whole;
(vi) The Registration Statement, all Preliminary
Prospectuses and the Prospectus and each amendment or supplement thereto
(except for the consolidated financial statements and schedules and other
financial data included therein, as to which such counsel shall express no
opinion) comply as to form in all material respects with the requirements
of the Securities Act and the Rules and the documents incorporated by
reference in the Registration Statement, all Preliminary Prospectuses and
the Prospectuses and the documents incorporated therein, and any further
amendment or supplement to any such incorporated document made by the
Company (except for the consolidated financial statements and schedules
and other financial data included therein, as to which such counsel shall
express no opinion) when they became effective or were filed with the
Commission, as the case may be, and as of the date of each Closing Date,
complied as to form in all material respects with the requirements of the
Securities Act or the Securities Exchange Act of 1934,
20
as amended (the "Exchange Act"), as applicable, and the rules and
regulations of the Commission thereunder;
(vii) The Registration Statement is effective
under the Securities Act, and to such counsel's knowledge no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are
threatened, pending or contemplated. Any required filing of the Prospectus
and any supplement thereto pursuant to Rule 424(b) under the Securities
Act has been made in the manner and within the time period required by
such Rule 424(b);
(viii) The shares of Common Stock issuable upon
conversion of the Securities have been approved for listing on the New
York Stock Exchange;
(ix) The Company is not an "investment company"
or an entity controlled by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended; and
(x) The statements in the Prospectus under the
captions "Description of Notes," Description of Capital Stock" and
"Certain United States Federal Tax Considerations," insofar as such
statements constitute a summary of documents referred to therein or
matters of law, are accurate in all material respects and accurately
present the information with respect to such documents and matters.
Additionally, such counsel shall state that it has
participated in conferences with officers and other representatives of the
Company, representatives of the Underwriters and representatives of the
independent certified public accountants of the Company, at which
conferences the contents of the Registration Statement and the Prospectus
and related matters were discussed, and although such counsel such counsel
does not pass opinion upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus (except as specified in the
foregoing opinion), on the basis of the foregoing, no facts have come to
such counsel's attention which would lead such counsel to believe that (i)
the Registration Statement at the time it became effective (except with
respect to the consolidated financial statements and notes and schedules
thereto and other financial data, as to which such counsel need express no
statement or opinion) contained any 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 as amended or supplemented (except with respect to the
consolidated financial statements, notes and schedules thereto and other
21
financial data, as to which such counsel need make no statement or
opinion) on the date thereof contained any 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 or (ii) any document incorporated by reference
in the Prospectus or any further amendment or supplement to any such
incorporated document made by the Company, when it became effective or was
filed with the Commission, as the case may be, contained, in the case of a
registration statement which became effective under the Securities Act,
any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, or, in the case of other documents
which were filed under the Exchange Act with the Commission, 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.
(g) The Underwriters shall have received on the Firm
Securities Closing Date and the Optional Securities Closing Date, if any, from
Xxxxxxx X. Xxxx, Esq., Secretary and General Counsel of the Company, an opinion,
addressed to the Underwriters, substantially similar to the opinion set forth in
Annex III hereto, and dated each such closing date, and stating in effect that:
(i) Each of the Company and its subsidiaries located in the
United States of America (the "Domestic Subsidiaries") has been duly
organized and is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation. The Company and its
Domestic Subsidiaries is duly qualified to transact business and is in
good standing as a foreign corporation in the jurisdictions set forth on
Schedule A hereto, except where the failure to so qualify or to be in good
standing, individually or in the aggregate, would not have a Material
Adverse Effect;
(ii) To the best of such counsel's knowledge, there is no
action, suit, proceeding or other investigation, before any court or
before any public body or board pending or threatened against, or
involving the assets, properties, or businesses of, the Company which is
required to be disclosed in the Registration Statement and the Prospectus
and is not so disclosed or which could reasonably be expected to have a
Material Adverse Effect;
(iii) Each of the Company and its Domestic Subsidiaries has
all requisite corporate power and authority to own, lease and operate its
properties and to conduct its business as now being conducted and as
described in the Registration Statement and the Prospectus and, with
respect to the Company, to enter into and perform its obligations under
this Agreement and the Indenture, and to issue and sell the Securities;
22
(iv) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Registration Statement and the
Prospectus under the caption "Capitalization" as of the dates stated
therein and, since such dates, there has been no change in the capital
stock of the Company except for subsequent issuances, if any, pursuant to
this Agreement or pursuant to transactions, reservations, agreements or
employee benefit plans referred to in the Prospectus or pursuant to the
exercise of convertible securities or options referred to in the
Prospectus. The Securities to be issued and sold by the Company pursuant
to this Agreement have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered by
the Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued, fully paid and
nonassessable, and no holder of the Securities is or will be subject to
personal liability by reason of being such a holder. The shares of Common
Stock issuable upon conversion of the Securities have been duly authorized
and, when issued and delivered by the Company, will be validly issued,
fully paid and nonassessable, and no holder of the Securities is or will
be subject to personal liability by reason of being such a holder;
(v) The issuance and sale of the Securities by the Company is
not subject to any preemptive or other similar rights of any
securityholder of the Company. To such counsel's knowledge, except as
disclosed in the Registration Statement and the Prospectus, there are no
preemptive or other rights to subscribe for or to purchase or any
restriction upon the voting or transfer of any securities of the Company
pursuant to the Company's certificate of incorporation or by-laws or other
governing documents or any agreements or other instruments to which the
Company is a party or by which it is bound. To such counsel's knowledge,
except as disclosed in the Registration Statement and the Prospectus,
there is no outstanding option, warrant or other right calling for the
issuance of, and no commitment, plan or arrangement to issue, any share of
stock of the Company or any security convertible into, exercisable for, or
exchangeable for stock of the Company. The Common Stock and the Securities
conform in all material respects to the descriptions thereof contained in
the Registration Statement and the Prospectus. The form of the Securities
conforms in all material respects with any applicable requirements of the
certificate of incorporation and bylaws of the Company. To such counsel's
knowledge, there are no persons with registration rights or other similar
rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the Securities Act;
(vi) All necessary corporate action has been duly and validly
taken by the Company to authorize the issuance of shares of Common Stock
upon conversion of the Securities;
23
(vii) Each of this Agreement, the Securities and the Indenture
have been duly and validly authorized, executed and delivered by the
Company;
(viii) Neither the execution, delivery and performance of this
Agreement by the Company nor the consummation of any of the transactions
contemplated hereby (including, without limitation, the issuance and sale
by the Company of the Securities and the issuance of shares of Common
Stock upon conversion of the Securities) will give rise to a right to
terminate or accelerate the due date of any payment due under, or conflict
with or result in the breach of any term or provision of, or constitute a
default (or any event which with notice or lapse of time, or both, would
constitute a default) under, or require consent or waiver under, or result
in the execution or imposition of any lien, charge, claim, security
interest or encumbrance upon any properties or assets of the Company or
any Subsidiary pursuant to the terms of, any indenture, mortgage, deed,
trust, note or other agreement or instrument filed as an exhibit to the
Company's filings with the Commission under the Exchange Act;
(ix) No consent, approval, authorization, license,
registration, qualification or order of any court or governmental agency
or regulatory body pursuant to the laws of the State of Idaho is required
for the due authorization, execution, delivery or performance of this
Agreement, the Indenture or the Securities by the Company or the
consummation of the transactions contemplated thereby (including the
issuance of shares of Common Stock upon conversion of the Securities),
except such as have been obtained under the Securities Act and such as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters, as to
which such counsel shall express no opinion;
(x) To such counsel's knowledge (A) each of the Company and
each of its subsidiaries is in compliance in all material respects with
all applicable Environmental Laws; (B) neither the Company nor its
subsidiaries has received any notice from any governmental authority or
third party of an asserted claim under any Environmental Laws, except as
would not, singly or in the aggregate, have a Material Adverse Effect; (C)
each of the Company and each of its subsidiaries has received all permits,
licenses or other approvals required of it under applicable Environmental
Laws to conduct its business and is in compliance with all terms and
conditions of any such permit, license or approval, except where such
failure to receive required permits, licenses or other approvals would
not, singly or in the aggregate, have a Material Adverse Effect; and (D)
any claims made pursuant to the Comprehensive Environmental Response,
Compensation of Liability Act of 1980, as amended, or comparable
applicable federal, state or local law with respect to property that is or
has been owned, leased or occupied by the Company
24
or its subsidiaries, have been settled or disclosed in the Prospectus,
except any claims which would not, singly or in the aggregate, have a
Material Adverse Effect; and
(xi) The statements in the Prospectus under the captions
"Description of Common Stock" and "Description of Capital Stock" and in
the Registration Statement under Item 14 of Part II, insofar as such
statements constitute a summary of documents referred to therein or
matters of law, are accurate in all material respects and accurately
present the information with respect to such documents and matters.
Accurate copies of all contracts and other documents required to be filed
as exhibits to, or described in, the Registration Statement have been so
filed with the Commission or are fairly described in the Registration
Statement, as the case may be.
Additionally, such counsel shall state that it has
participated in conferences with officers and other representatives of the
Company, representatives of the Underwriters and representatives of the
independent certified public accountants of the Company, at which
conferences the contents of the Registration Statement and the Prospectus
and related matters were discussed, and although such counsel such counsel
does not pass opinion upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus (except as specified in the
foregoing opinion), on the basis of the foregoing, no facts have come to
such counsel's attention which would lead such counsel to believe that (i)
the Registration Statement at the time it became effective (except with
respect to the consolidated financial statements and notes and schedules
thereto and other financial data, as to which such counsel need express no
statement or opinion) contained any 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 as amended or supplemented (except with respect to the
consolidated financial statements, notes and schedules thereto and other
financial data, as to which such counsel need make no statement or
opinion) on the date thereof contained any 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 or (ii) any document incorporated by reference
in the Prospectus or any further amendment or supplement to any such
incorporated document made by the Company, when it became effective or was
filed with the Commission, as the case may be, contained, in the case of a
registration statement which became effective under the Securities Act,
any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, or, in the case of other documents
which were filed under the Exchange Act with the Commission, an untrue
25
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.
(h) The Underwriters shall have received on the Firm
Securities Closing Date and the Optional Securities Closing Date, if any, from
foreign counsel of the Company, opinions reasonably satisfactory in form and
substance to the Underwriters and its counsel;
(i) The Underwriters shall have received on each the Firm
Securities Closing Date and the Optional Securities Closing Date, if any, from
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, an
opinion, addressed to the Underwriters and dated such closing date, in form and
substance satisfactory to the Underwriters;
(j) All proceedings taken in connection with the sale of the
Firm Securities and the Option Securities as herein contemplated shall be
reasonably satisfactory in form and substance to the Underwriters and their
counsel and the Underwriters shall have received from Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP a favorable opinion, addressed to the Underwriters and dated
such closing date, with respect to the Securities, the Registration Statement
and the Prospectus, and such other related matters, as the Underwriters may
reasonably request, and the Company shall have furnished to Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP such documents as they may reasonably request for the
purpose of enabling them to pass upon such matters;
(k) The Underwriters shall have received copies of the Lockup
Agreements, in the form set forth in Annex I hereto, executed by each entity or
person listed therein;
(l) The Company shall have furnished or caused to be furnished
to the Underwriters such further certificates or documents as the Underwriters
shall have reasonably requested;
(m) The Company shall have complied with the provisions of
Section 4(m) hereof with respect to the furnishing of prospectuses on the
Business Day next succeeding the date of this Agreement; and
(n) On or after the date hereof no downgrading, or placement
on any watch list for possible downgrading, 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 Exchange Act)
shall have occurred.
If any of the conditions hereinabove provided for in this
Section 6 shall not have been fulfilled when and as required by this Agreement
to be fulfilled, the obligations of the Underwriters hereunder may be terminated
by the Representative by notifying the Company of such termination in writing or
by telegram at or prior to the Firm Securities Closing Date or the Option
Securities Closing Date, as the case may be.
26
In such event, the Company and the Underwriters shall not be
under any obligation to each other (except to the extent provided in Sections 5
and 8 hereof).
7. Conditions of the Obligations of the Company.
The obligations of the Company to sell and deliver the portion of
the Securities required to be delivered as and when specified in this Agreement
are subject to the conditions that at the Firm Securities Closing Date or the
Optional Securities Closing Date, as the case may be, no stop order suspending
the effectiveness of the Registration Statement shall have been issued and in
effect or proceedings therefor initiated or threatened.
8. Indemnification.
(a) The Company agrees:
(i) to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, against any losses, claims, damages or liabilities to
which such Underwriter or any such controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement,
any Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto, (ii) 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 in the light of the circumstances under which they
were made or (iii) any act or failure to act, or any alleged act or
failure to act by any Underwriter in connection with, or relating in any
manner to, the Securities or the offering contemplated hereby, and which
is included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon matters covered by clause
(i) or (ii) above (provided, that the Company shall not be liable under
this clause (iii) to the extent that it is determined in a final judgment
by a court of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such acts or failures to
act undertaken or omitted to be taken by such Underwriter through its
gross negligence or willful misconduct); 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 an untrue
statement or alleged untrue statement, or omission or alleged omission
made in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or such amendment or supplement, in reliance upon and in
conformity with
27
written information furnished to the Company by or through the
Representative specifically for use in the preparation thereof; and
(ii) to reimburse each Underwriter and
each such controlling person upon demand for any legal or other
out-of-pocket expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending any such
loss, claim, damage or liability, action or proceeding or in responding to
a subpoena or governmental inquiry related to the offering of the
Securities, whether or not such Underwriter or controlling person is a
party to any action or proceeding. In the event that it is finally
judicially determined that the Underwriters were not entitled to receive
payments for legal and other expenses pursuant to this subparagraph, the
Underwriters will promptly return all sums that had been advanced pursuant
hereto.
(b) Each Underwriter severally and not jointly will indemnify
and hold harmless the Company, each of its directors, each of its officers who
have signed the Registration Statement, and each person, if any, who controls
the Company within the meaning of the Securities Act, against any losses,
claims, damages or liabilities to which the Company or any such director,
officer, or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, or (ii) the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances under
which they were made; and will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that each Underwriter will
be liable in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission has been
made in the Registration Statement, any Preliminary Prospectus, the Prospectus
or such amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Representative
specifically for use in the preparation thereof. This indemnity agreement will
be in addition to any liability which such Underwriter may otherwise have.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to this Section 8, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 8(a), (b) or (c) shall be available to
any party who shall fail to give notice as provided in this Section 8(d) if the
party to whom notice was not given was unaware of the proceeding to which such
notice would have related and was materially prejudiced by the failure to give
such notice, but the failure to give such notice shall not relieve the
indemnifying party or parties from any
28
liability which it or they may have to the indemnified party for contribution or
otherwise than on account of the provisions of Section 8(a), (b) or (c). In case
any such proceeding shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party and
shall pay as incurred the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel at its own expense. Notwithstanding the foregoing, the
indemnifying party shall pay as incurred (or within 30 days of presentation) the
fees and expenses of the counsel retained by the indemnified party in the event
(i) the indemnifying party and the indemnified party shall have mutually agreed
to the retention of such counsel, (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them or
(iii) the indemnifying party shall have failed to assume the defense and employ
counsel acceptable to the indemnified party within a reasonable period of time
after notice of commencement of the action. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by you in the case of parties indemnified
pursuant to Section 8(a), (b) or (c) and by the Company in the case of parties
indemnified pursuant to Section 8(c). The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. In addition, the
indemnifying party will not, without the prior written consent of the
indemnified party, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action or proceeding of which
indemnification may be sought hereunder (whether or not any indemnified party is
an actual or potential party to such claim, action or proceeding) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action or
proceeding.
(d) To the extent the indemnification provided for in this
Section 8 is unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a), (b) or (c) above in respect of any losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Securities.
If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party 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 the
29
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company, and the Underwriters agree that it would not
be just and equitable if contributions pursuant to this Section 8(e) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
8(e). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to above in this Section 8(e) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (e), (i) no Underwriter shall
be required to contribute any amount in excess of the underwriting discounts and
commissions applicable to the Securities purchased by such Underwriter, and (ii)
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this Section 8(f) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(f) In any proceeding relating to the Registration Statement,
any Preliminary Prospectus, the Prospectus or any supplement or amendment
thereto, each party against whom contribution may be sought under this Section 8
hereby consents to the jurisdiction of any court having jurisdiction over any
other contributing party, agrees that process issuing from such court may be
served upon it by any other contributing party and consents to the service of
such process and agrees that any other contributing party may join it as an
additional defendant in any such proceeding in which such other contributing
party is a party.
(g) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 8 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person
30
controlling any Underwriter, the Company, its directors or officers or any
persons controlling the Company, (ii) acceptance of any Securities and payment
therefor hereunder, and (iii) any termination of this Agreement. A successor to
any Underwriter, or any person controlling any Underwriter, or to the Company,
its directors or officers, or any person controlling the Company, shall be
entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 8.
9. Default by Underwriters.
If on the Firm Securities Closing Date or the Optional Securities
Closing Date, as the case may be, any Underwriter shall fail to purchase and pay
for the portion of the Securities which such Underwriter has agreed to purchase
and pay for on such date (otherwise than by reason of any default on the part of
the Company), you, as Representative of the Underwriters, shall use your
reasonable efforts to procure within 36 hours thereafter one or more of the
other Underwriters, or any others, to purchase from the Company such amounts as
may be agreed upon and upon the terms set forth herein, the Securities which the
defaulting Underwriter or Underwriters failed to purchase. If during such 36
hours you, as such Representative, shall not have procured such other
Underwriters, or any others, to purchase the Securities agreed to be purchased
by the defaulting Underwriter or Underwriters, then (a) if the aggregate amount
of Securities with respect to which such default shall occur does not exceed 10%
of the aggregate amount of Securities to be purchased on the Firm Securities
Closing Date or the Optional Securities Closing Date, as the case may be, the
other Underwriters shall be obligated, severally, in proportion to the
respective amount of Securities which they are obligated to purchase hereunder,
to purchase the Securities which such defaulting Underwriter or Underwriters
failed to purchase, or (b) if the aggregate amount of shares of Securities with
respect to which such default shall occur exceeds 10% of the Securities to be
purchased on the Firm Securities Closing Date or the Optional Securities Closing
Date, as the case may be, the Company or you as the Representative of the
Underwriters will have the right, by written notice given within the next
36-hour period to the parties to this Agreement, to terminate this Agreement
without liability on the part of the non-defaulting Underwriters or of the
Company except to the extent provided in Sections 5 and 8 hereof. In the event
of a default by any Underwriter or Underwriters, as set forth in this Section 9,
the Firm Securities Closing Date or Optional Securities Closing Date, as the
case may be, may be postponed for such period, not exceeding seven days, as you,
as Representative, may determine in order that the required changes in the
Registration Statement or in the Prospectus or in any other documents or
arrangements may be effected. The term "Underwriter" includes any person
substituted for a defaulting Underwriter. Any action taken under this Section 9
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
10. Notices.
All communications hereunder shall be in writing and, except as
otherwise provided herein, will be mailed, delivered, telecopied or
telegraphed and confirmed as follows: if to the Underwriters, to Deutsche
Bank Securities Inc., 00 Xxxx Xxxxxx, 0xx
00
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; Attention: Syndicate Manager, with a copy to
Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: General Counsel, with a copy, which shall not constitute notice, to
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxx X. Xxxxxxxxxxx, Esq., and if to the Company, to its
agent for service as such agent's address appears on the cover page of the
Registration Statement with a copy to Xxxxxx, Xxxx & Xxxxxxxx LLP, 0000 Xxxxxxx
Xxxx Xxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxx, Esq.
11. Termination.
This Agreement may be terminated by you by notice to the Company (1)
any time prior to the Firm Securities Closing Date or any Optional Securities
Closing Date (if different from the Firm Securities Closing Date and then only
as to Optional Securities) if any of the following has occurred: (i) since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, any material adverse change or any development involving a
prospective material adverse change in or affecting the earnings, business,
management, properties, assets, rights, operations, condition (financial or
otherwise) or prospects of the Company and its subsidiaries taken as a whole,
whether or not arising in the ordinary course of business, (ii) any outbreak or
escalation of hostilities or declaration of war or national emergency or other
national or international calamity or crisis or change in economic or political
conditions if the effect of such outbreak, escalation, declaration, emergency,
calamity, crisis or change on the financial markets of the United States would,
in your reasonable judgment, make it impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities, or (iii)
suspension of trading in securities generally on the New York Stock Exchange,
the American Stock Exchange or the Nasdaq National Market or limitation on
prices (other than limitations on hours or numbers of days of trading) for
securities on either such exchange, (iv) the enactment, publication, decree or
other promulgation of any statute, regulation, rule or order of any court or
other governmental authority which in your opinion materially and adversely
affects or may materially and adversely affect the business or operations of the
Company, (v) the declaration of a banking moratorium by United States or New
York State authorities, (vi) any downgrading, or placement on any watch list for
possible downgrading, 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 Exchange Act); (vii) the suspension of trading
of the Company's Common Stock by the New York Stock Exchange, the Commission, or
any other governmental authority or, (viii) the taking of any action by any
governmental body or agency in respect of its monetary or fiscal affairs which
in your reasonable opinion has a Material Adverse Effect on the securities
markets in the United States; or
(b) as provided in Sections 6 and 9 of this Agreement.
12. Successors.
32
This Agreement has been and is made solely for the benefit of the
Underwriters, the Company and their respective successors, executors,
administrators, heirs and assigns, and the officers, directors and controlling
persons referred to herein, and no other person will have any right or
obligation hereunder. No Underwriter of any of the Securities from any
Underwriter shall be deemed a successor or assign merely because of such
purchase.
13. Information Provided by Underwriters.
The Company and the Underwriters acknowledge and agree that the only
information furnished or to be furnished by any Underwriter to the Company for
inclusion in any Prospectus or the Registration Statement consists of the
information set forth in the second paragraph under the caption "Underwriting"
in the Prospectus Supplement.
14. Miscellaneous.
The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations, warranties and covenants in
this Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of any
Underwriter or controlling person thereof, or by or on behalf of the Company or
its directors or officers and (c) delivery of and payment for the Securities
under this Agreement.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance
with, the law of the State of New York without regard to the conflict of laws
provisions thereof.
33
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company and the
Underwriters in accordance with its terms.
Very truly yours,
COEUR D'XXXXX XXXXX CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
___________________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
DEUTSCHE BANK SECURITIES INC.
As Representative of the
Underwriters listed on Schedule I
By: Deutsche Bank Securities Inc.
By: /s/ Xxxx Xxxxxx
________________________________
Authorized Officer
By: /s/ Xxxx Xxxxxxxxxxx
________________________________
Authorized Officer
(Signature Page to Underwriting Agreement)
1
SCHEDULE I
Schedule of Underwriters
Aggregate Principal Amount of
Underwriter Firm Securities to be Purchased
Deutsche Bank Securities Inc. $144,000,000
Bear, Xxxxxxx & Co. Inc. $ 16,000,000
------------
Total $160,000,000
------------
2
SCHEDULE II
Schedule of Optional Securities
Underwriter Maximum Amount Percentage of
of Optional Securities Total Amount of
to be Sold Optional Securities
Deutsche Bank Securities Inc. $18,000,000 90%
Bear, Xxxxxxx & Co. Inc. $ 2,000,000 10%
----------- ---
Total $20,000,000 100%
----------- ---
3
