EXHIBIT (d)(1)
STOCK PURCHASE AGREEMENT
Stock Purchase Agreement ("Agreement") entered into as of the 27th day
of August, 2001, between Hecla Mining Company, a Delaware corporation
("Company"), Copper Mountain Trust ("Trustee") for the Hecla Mining Company
Retirement Plan and Lucky Friday Pension Plan ("Purchaser" or "Trustee").
The Company agrees to sell and the Purchaser agree to purchase
5,749,883 shares of common stock, $0.25 par value, of the Company ("Shares") at
a purchase price of $0.95 per Share. The Purchaser shall purchase 4,610,174
shares on behalf of the Hecla Mining Company Retirement Plan and shall purchase
1,139,709 shares on behalf of the Lucky Friday Pension Plan.
The closing of the sale of the Shares to the Purchaser shall take place
at 10:00 a.m. on August 28, 2001, at the executive office of the Company, at
which time the Company shall deliver to the Purchaser certificates representing
their respective Shares registered in the names of the Purchaser, and the
Purchaser shall cause the purchase price of the Shares to be purchased by each
to be wire transferred to an account specified by the Company.
The Purchaser has been instructed by Consulting Fiduciaries, Inc., the
independent fiduciary to the Trustee to enter into this Agreement on behalf of
the Plans.
The Company represents and warrants to the Purchaser that (i) the
Company has the power, and has been authorized, to enter into this Agreement and
to effect the transactions contemplated by it, and this Agreement has been duly
executed on behalf of the Company and is binding and enforceable on it, and (ii)
the Shares when delivered and paid for will be validly issued, fully paid and
non-assessable and listed (subject to notice of issuance) on the New York Stock
Exchange.
The Purchaser represents and warrants to the Company that it has the
power, and has been duly authorized, to enter into this Agreement and effect the
transactions contemplated by it, and this Agreement has been duly executed on
behalf of such Purchaser and is binding and enforceable on it.
The Purchaser represents and warrants to the Company that it is an
accredited investor as defined in Regulation D promulgated under the Securities
Act of 1933 ("Securities Act") and that it understands that the Shares have not
been registered under the Securities Act and may not be resold by the Purchaser
without registration under the Securities Act or an exemption therefrom.
Certificates for the Shares will bear the following legend:
The shares of common stock of Hecla Mining Company
represented by this certificate have been issued
pursuant to an exemption from registration under the
Securities Act of 1933 and may not be resold without
registration thereunder or an exemption therefrom.
The issuer may require an opinion of counsel
reasonably satisfactory to it to the effect that
such an exemption is available before permitting
transfer of such shares.
The following Sections 1 through 5 shall apply if the Purchaser desires
to sell Shares at a time and in a fashion that registration or an exemption from
registration under the Securities Act is not available for the sale. The
independent fiduciary or investment manager appointed by the Company will be
responsible for directing the Trustee to exercise the Purchaser's rights under
Sections 1 through 5, including the number of Shares to be registered for the
Purchaser.
1. Registration of Shares on Request.
(a) Upon the written request of the Purchaser covering at least
1,000,000 Shares which are not registered or otherwise eligible for sale under
Rule 144 or some other exemption under the Securities Act within the succeeding
90 days, the Company shall prepare and file with the Securities and Exchange
Commission (the "Commission") a registration statement under the Securities Act,
on such form and in such manner as the Company may deem appropriate for the sale
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or other disposition of such number of the Shares as shall be specified in such
written request and use its reasonable best efforts to cause such registration
statement to become effective as soon as practicable after such registration
statement is filed; provided, however, that the Company shall not be obligated
to effect any such registration pursuant to this Section 1(a) at any time prior
to January 1, 2002. In connection therewith, the Company will prepare and file
with the Commission such amendments and supplements to such registration
statement and the prospectus or prospectuses used in connection therewith as it
deems necessary to keep such registration statement effective for a reasonable
period from the effective date thereof (but not more than 45 days from the
effective date thereof) so as to permit the offering and sale by the Purchaser
in accordance with the intended method or methods of distribution described in
the registration statement, subject to earlier termination in the event all the
shares are sold thereunder or as otherwise terminated or delayed pursuant to
this Agreement.
(b) The Company shall be entitled to postpone the filing of any
registration statement pursuant to this Section 1 otherwise required to be
prepared and filed by it (i) if the Company is currently engaged in a
self-tender or exchange offer and the filing of a registration statement would
cause a violation of the Securities Exchange Act of 1934, (ii) if the Chief
Executive Officer of the Company certifies to the Purchaser that the Company is
engaged in, or plans to engage within 60 days in, a registered public offering
(including a registration statement on Form S-4 or the then substantial
equivalent thereof); or (iii) such other circumstances exist as shall, in the
reasonable judgment of the Company's Board of Directors, make a public offering
of the Company's securities impracticable (provided that the Company may
postpone the filing of a registration statement pursuant to this subparagraph
(iii) not more than once in any 12-month period and for a period not to exceed
90 days). In the event of such postponement, the Company shall be required, upon
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the request of the Purchaser, to file the registration statement pursuant to
this Section 1 as soon as practicable after the termination or consummation of
any of the events set forth in (i), (ii) and (iii) above. The Company shall
select the underwriter or underwriters to be used in connection with any public
offering of securities registered pursuant to this Section 1.
(c) The Company shall not be obligated to file more than two
registration statements in response to a request from the Purchaser delivered
pursuant to this Section 1. The filing of a registration statement relating to
the Shares in response to such a request of the Purchaser shall not count
against such limitation in the event the Purchaser is precluded from completing
the sale of the Shares contemplated by such registration statement due to a
failure by the Company to perform any obligation in the related underwriting
agreement or due to a material change in the Company's business.
2. Piggy-Back Registration. If at any time subsequent to December 31,
2001 and prior to December 31, 2003, the Company proposes to register any of its
equity securities (other than pursuant to Section 1 or for securities issued
with respect to any acquisition or any employee stock option, stock purchase, or
similar plan or any other securities to be registered pursuant to a special
purpose registration) under the Securities Act on Form X-0, Xxxx X-0, Form S-3
or any other form of general application for sale of securities to the public in
an underwritten offering upon which may be registered securities similar to the
Shares, it will each such time at least 30 days prior to the anticipated filing
date of such proposed registration statement give written notice to the
Purchaser of its intention so to do and, upon the written request of the
Purchaser made within 10 days after the receipt of any such notice, the Company
will use its reasonable best efforts to effect the registration under the
Securities Act of the Shares which the Company has been so requested to
register; provided, however, that in connection with a registration described in
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this Section 2 in which the securities being registered are intended to be sold
in an underwritten public offering, if in the opinion of the managing
underwriter or underwriters marketing considerations require the reduction of
the number of shares of Common Stock covered by any such registration, the
number of Shares to be registered on behalf of the Purchaser and the number of
shares of Company common stock to be registered on behalf of any other selling
stockholders shall be reduced (to zero if necessary) pro rata, according to the
aggregate number of shares of Company common stock requested to be registered by
the Purchaser and any other selling stockholders participating in such
registration.
3. Registration Procedures. If and when the Company is required to
effect the registration of any of the Shares under the Securities Act as
provided in this Agreement:
(a) The Company shall furnish to the Purchaser and to the managing
underwriters with respect to the underwriting related thereto such number of
copies of each preliminary prospectus and final prospectus and supplement
thereto as may be reasonably necessary in order to effect the sale of the Shares
to be offered and sold.
(b) The Company shall promptly notify the Purchaser in the event any
prospectus then in use contains any untrue statement of a material fact or any
omission of a material fact necessary to make the statements therein, in light
of the circumstances in which they were made not misleading, and, upon receipt
of such notice, the Purchaser shall not offer or sell any securities covered by
such prospectus and shall return all copies of such prospectus to the Company if
requested to do so by the Company, and, at the request of the Purchaser, the
Company shall promptly prepare and furnish to the Purchaser a reasonable number
of copies of a supplement to such prospectus so that, as supplemented, the
prospectus no longer contains any untrue statement of a material fact or any
omission of a material fact necessary to make the statements therein, in light
of the circumstances in which they were made, not misleading.
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(c) The Company shall use its reasonable best efforts to qualify any
offering of the Shares under any applicable Blue Sky or other securities laws of
such states as may be reasonably specified by the Purchaser or the managing
underwriter with respect to such offering; provided, however, that the Company
shall not be obligated to qualify as a foreign corporation to do business under
the laws of any jurisdiction in which it is not then qualified or to subject
itself to taxation in any such jurisdiction or to file any general consent to
service of process.
(d) The Company shall afford the Purchaser and their legal
representatives the opportunity to make such reasonable examination and inquiry
into the financial condition and business of the Company as the Purchaser may
reasonably deem necessary or prudent in connection with the preparation of the
registration statement or any other materials to be used in connection with an
offering, sale, or distribution by the Purchaser.
(e) Upon exercising registration rights in accordance with Section 1 or
Section 2, as the case may be, the Purchaser shall provide the Company with all
information regarding the Purchaser as the Company may from time to time
reasonably request in connection with the preparation of the registration
statement.
(f) The Purchaser shall bear all underwriting fees, discounts and
commissions attributable to the Shares which are sold by them pursuant to such
registration. The Company will otherwise pay all costs and expenses in
connection with any registration and filing fees, all printing expenses, and all
Blue Sky fees and expenses (including fees and expenses of its counsel in
connection with Blue Sky surveys).
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4. Indemnification. In the event of any registration of any of the
Shares of the Purchaser under the Securities Act pursuant to this Agreement, the
Company will indemnify and hold harmless the Purchaser and its directors and
officers and each underwriter of such securities and each other person, if any,
who controls the Purchaser or each such underwriter within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which the Purchaser or its directors or officers or each such
underwriter 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 any
registration statement under which the Shares were registered under the
Securities Act, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto, or (ii) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a prospectus, in light
of the circumstances under which they were made) not misleading; and the Company
will reimburse the Purchaser, each such director and officer, each such
underwriter and each such controlling person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, action or proceeding; provided, however,
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
such registration statement, any such preliminary prospectus, final prospectus,
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by the
Purchaser or controlling person specifically for use in the preparation thereof.
Such indemnity shall remain in full force and effect irrespective of any
investigation by any person indemnified above.
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The Company may require, as a condition to including any of the Shares
in any registration statement filed pursuant to Section 1 or 2 hereof, that the
Company shall have received an undertaking satisfactory to it from the Purchaser
to indemnify and hold harmless the Company, each director of the Company, each
officer of the Company who shall sign such registration statement and any person
who controls the Company within the meaning of the Securities Act, with respect
to losses, claims, damages or liabilities arising from any statement in or
omission from such registration statement, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereto, if such
statement or omission was made in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by the
Purchaser specifically for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, amendment or supplement.
Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in the preceding
paragraphs of this Section 4, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party, give written notice
to the latter of the commencement of such action; provided, however, that the
failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under the preceding paragraphs
of this Section 4, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an indemnified party, the indemnifying party shall be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
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the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expense subsequently incurred by the
latter in connection with the defense thereof. No indemnifying party, in the
defense of any such claim or litigation, shall, except with the consent of each
indemnified party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect to such claim or litigation.
5. Holdback Agreement. So long as the Purchaser is the holder of Shares
representing no less than 1% of the outstanding common stock of the Company, if
the Company initiates a registration of the Company's securities in which the
securities being registered are intended to be sold in an underwritten public
offering, the Purchaser agrees, upon request of the underwriters managing such
underwritten public offering, not to sell, make any short sale of, loan, grant
any option for the purchase of or otherwise dispose of any of the Shares (other
than those included in the registration) without the prior written consent of
such managing underwriters for such period of time from the effective date of
such registration as may be requested by such managing underwriters.
6. Successors and Assigns. All covenants and agreements contained in
this Agreement by or on behalf of either of the parties hereto will bind and
inure to the benefit of the respective successors and assigns of the parties,
whether so expressed or not.
7. Changes in Shares. If the Shares are changed by stock split, reverse
stock split, merger, consolidation or recapitalization, references to Shares
herein shall be deemed to refer to the securities received for each Share so
affected.
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8. Notices. Any notices required or permitted to be sent hereunder
shall be delivered personally or mailed, certified mail, return receipt
requested, or delivered by electronic facsimile or overnight courier service to
the following addresses, or such other address as any party hereto designates by
written notice to the other, and shall be deemed to have been give upon
delivery, if delivered personally or by electronic facsimile, three days after
mailing, if mailed, or one business day after delivery to the courier, if
delivered by overnight courier service:
If to the Company, to: Hecla Mining Company
0000 Xxxxxxx Xxxxx
Xxxxx x'Xxxxx, Xxxxx 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx
General Counsel
If to the Purchaser, to: Copper Mountain Trust, Trustee
000 XX Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: T.R. West
Vice President
Copy to: Consulting Fiduciaries, Inc.
000 Xxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxx X. Xxxxx
Principal
9. Governing Law. This Agreement shall be governed by the internal laws
of the State of Delaware without regard to principles of conflicts of law.
10. Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, and such counterparts together shall constitute one
instrument.
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11. Consent to Jurisdiction; Waiver of Trial by Jury. The parties
hereto hereby irrevocably agree that any suit, action, proceeding or claim
relating to this Agreement may be brought only in the state or federal courts in
the State of Delaware. Each party irrevocably waives any objection to the venue
or jurisdiction of any proceeding brought in such courts, and any claim that
such proceeding has been brought in an inconvenient forum. Each party waives its
right to trial by jury, and agrees that service of process may be made in any
manner specified in Section 8 above.
The parties hereto have executed this Agreement as of the date first
set forth above.
HECLA MINING COMPANY
By: /s/ Authorized Signatory
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Name:
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Title:
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By: COPPER MOUNTAIN TRUST, TRUSTEE
For the Hecla Mining Company Retirement Plan
By: /s/ Authorized Signatory
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Name:
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Title:
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By: COPPER MOUNTAIN TRUST, TRUSTEE
For the Lucky Friday Pension Plan
By: /s/ Authorized Signatory
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Name:
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Title:
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