Arm’s Length Transaction. The Company acknowledges and agrees that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, neither the Representatives nor any other Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between the Company and the several Underwriters. Very truly yours, HECLA MINING COMPANY By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Title: Senior Vice President The foregoing Agreement is hereby confirmed and accepted as of the date first above written. ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Authorized Signatory SCOTIA CAPITAL (USA) INC. By: /s/ A. ▇▇▇▇▇▇ ▇▇▇▇ A. ▇▇▇▇▇▇ ▇▇▇▇ Authorized Signatory For themselves and the other several Underwriters named in Schedule I. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 12,400,000 Scotia Capital (USA) Inc. 7,750,000 BMO Capital Markets Corp. 5,425,000 RBC Capital Markets Corporation 5,425,000 A first Issuer Free Writing Prospectus, dated September 3, 2008 A second Issuer Free Writing Prospectus, dated September 3, 2008 Price per share to the public: $5.00 Offering Size: 31,000,000 shares Over-allotment Option: 4,000,000 shares, if the Underwriters exercise their option to purchase additional shares in full Closing Date: September 12, 2008 September , 2008 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ As Representatives of the several Underwriters Ladies and Gentlemen: This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), between Hecla Mining Company, a Delaware corporation (the “Company”), and you as Representatives of a group of Underwriters named therein, relating to an underwritten public offering of shares of common stock, par value $0.25 per share, of the Company. In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned not including the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period beginning on the date hereof and continuing for 90 days after the date of the Underwriting Agreement (the “Lock-Up Period”), other than (i) capital stock disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc.; provided that the donee agrees in writing to be bound by the terms of this letter, (ii) capital stock that (when aggregated with all other shares of capital stock disposed of by executive officers and directors of the Company during such period) does not exceed 75,000 shares of capital stock, (iii) capital stock contributed by the Company to its 401(k), retirement, and employee benefit plans in the ordinary course of business and reallocation of funds within such accounts by the participants in or trustees or administrators of such plans, and (iv) capital stock disposed of under the Rule 10b5-1 trading plans or programs in existence of the date hereof. If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated. Yours very truly, [SIGNATURE] [NAME AND ADDRESS] Hecla Limited Hecla Alaska LLC ▇▇▇▇▇ Trading, Inc. Hecla Admiralty Company The selling restrictions are stated under the caption “Underwriting” in the Final Prospectus. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as representatives of the several Underwriters Ladies and Gentlemen: We have acted as special counsel to Hecla Mining Company, a Delaware corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-3ASR (No. 333-145919) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”), including the information deemed to be a part of any such registration statement at the time of effectiveness pursuant to Rule 430A under the 1933 Act (the “Registration Statement”), and the prospectus dated September 7, 2007, together with the preliminary prospectus supplement dated September 2, 2008 (together with the Issuer Free Writing Prospectuses identified on Schedule II of the Underwriting Agreement and the pricing press release filed on Form 8-K on [date], the “Disclosure Package”) and the final prospectus supplement dated September 8, 2008 forming part of the Registration Statement (together with the Disclosure Package, the “Prospectus”), covering (i) the sale by the Company of shares of common stock, par value $0.25 per share (the “Common Stock”), of the Company and the purchase by each of the Underwriters named in Schedule I to the Underwriting Agreement (as defined below) (collectively, the “Underwriters”) of the respective numbers of shares of Common Stock set forth in Schedule I to the Underwriting Agreement and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) of the Underwriting Agreement to purchase up to 4,000,000 additional shares of Common Stock to cover over-allotments, if any, pursuant to the Underwriting Agreement dated September 8, 2008 (the “Underwriting Agreement”) among the Company and you, as representatives of the Underwriters. This opinion is furnished to you pursuant to Section 6(b) of the Underwriting Agreement. Capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to such terms in the Underwriting Agreement. In this connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of: (1) the Underwriting Agreement; (2) the Registration Statement; (3) the Prospectus; (4) the Company Agreements (as defined below); (5) resolutions adopted by the Board of Directors of the Company and the Executive Committee of the Board of Directors of the Company; (6) a specimen certificate evidencing the Securities; (7) the Certificate of Incorporation and By-laws of the Company; (8) a certificate of the Secretary of the State of Delaware as to the existence of the Company; and (9) such corporate and other records, certificates, documents and other papers as we deemed it necessary to examine for the purpose of this opinion. Based on the foregoing, in reliance upon the assumptions set forth herein and subject to the qualifications herein contained, we are of the opinion that: (i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. (ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under the Underwriting Agreement. (iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in each domestic jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect. (iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to the Underwriting Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Disclosure Package and the Final Prospectus or pursuant to the exercise of convertible securities or options referred to in the Disclosure Package or the Final Prospectus); the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company. (v) Each domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; to the best of our knowledge all of the issued and outstanding capital stock of each domestic Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the best of our knowledge, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except as provided in that certain Amended and Restated Credit Agreement dated as of April 16, 2008 by and among the Company, The Bank of Nova Scotia, as administrative agent for the lenders, and the various financial institutions and other persons from time to time parties thereto and the related security agreement and pledge agreement, as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; none of the outstanding shares of capital stock of any domestic Significant Subsidiary was issued in violation of the preemptive or similar rights of any security holder of such domestic Significant Subsidiary. (vi) To the best of our knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments (collectively, the “Company Agreements”) required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement, other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto in the Prospectus are correct in all material respects as to legal matters. (vii) We are not aware of any authorization, approval, consent or order of any agency, governmental authority or court (other than under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the rules and regulations of the New York Stock Exchange, or as may be required under the securities or blue sky laws of the various states or foreign jurisdictions as to which we are not required to, and does not, express an opinion), that is required for the due authorization, issuance, sale or delivery of the Securities. (viii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company. (ix) The Securities have been duly and validly authorized, and upon issuance and delivery of the Securities in accordance with the Underwriting Agreement, the Securities will be validly issued and will be fully paid and non-assessable and no holder of such Securities is or will be subject to personal liability by reason of being such a holder. (x) The Securities conform in all material respects as to legal matters to the description thereof in the Registration Statement and the Prospectus. (xi) The issuance of the Securities is not subject to preemptive or other similar rights of any security holder of the Company under applicable law, the Certificate of Incorporation or By-Laws of the Company, or, to our knowledge, any contract or agreement of the Company. (xii) The statements made in the Prospectus under the caption “Description of Capital Stock – Common Stock,” to the extent they constitute matters of law or legal conclusions, have been reviewed by us and fairly present the information disclosed therein in all material respects. (xiii) To the best of our knowledge, there are no statutes or regulations that are required to be described in the Prospectus that are not described as required. (xiv) The Registration Statement, including any Rule 462(b) Registration Statement, has been declared effective under the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission. (xv) The Registration Statement (including the Rule 430A Information and any Rule 462(b) Registration Statement, as applicable) and the Prospectus, and each amendment or supplement thereto (except for the financial statements, financial schedules and other financial data included therein or omitted therefrom, as to which we are not required to, and do not, express an opinion), as of their respective effective or issue dates, complied as to form in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations. (xvi) omitted. (xvii) The form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Certificate of Incorporation and By-laws of the Company and the requirements of the New York Stock Exchange. (xviii) To the best of our knowledge, except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any subsidiary is a party, or to which the property of the Company or any subsid
Appears in 1 contract
Arm’s Length Transaction. The Company acknowledges and agrees that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, neither the Representatives nor any other Underwriter is no Underwriters are advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between the Company and the several Underwriters. Very truly yours, HECLA MINING COMPANY PROSPECT GLOBAL RESOURCES INC. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Title: Senior Vice President Chief Financial Officer The foregoing Agreement is hereby confirmed and accepted as of the date first above written. By: /s/ ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED Authorized Signatory MACQUARIE CAPITAL (USA) INC. By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Authorized Signatory By: /s/ ▇▇▇ ▇▇▇▇▇ Authorized Signatory ▇▇▇▇ CAPITAL PARTNERS, LLC By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Authorized Signatory SCOTIA CAPITAL (USA) STERNE AGEE & ▇▇▇▇▇, INC. By: /s/ A. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Authorized Signatory ▇▇▇▇▇▇▇ ▇▇▇▇ A. ▇▇▇▇▇▇ ▇▇▇▇ Authorized Signatory For themselves and the other several Underwriters named in Schedule I. ▇▇▇▇▇▇▇ Lynch& Company, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 12,400,000 Scotia LLC 6,000,000 Macquarie Capital (USA) Inc. 7,750,000 BMO Capital Markets Corp. 5,425,000 RBC Capital Markets Corporation 5,425,000 A first Issuer Free Writing Prospectus, dated September 3, 2008 A second Issuer Free Writing Prospectus, dated September 3, 2008 Price per share to the public: $5.00 Offering Size: 31,000,000 shares Over-allotment Option: 4,000,000 shares, if the Underwriters exercise their option to purchase additional shares in full Closing Date: September 12, 2008 September , 2008 ▇▇▇4,500,000 ▇▇▇▇ LynchCapital Partners, Pierce, ▇▇▇▇▇▇ LLC 3,000,000 Sterne Agee & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇Inc. 1,500,000 Total 15,000,000 Pricing Term Sheet, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ As Representatives dated November 8, 2012, in the form filed with the Commission. Issue Price $1.75 Underwriting Commission $.105 (6% of issue price) Aggregate Number of Shares 15,000,000 (17,250,000) (including Option Shares) Expected Closing Date November 14, 2012
(a) The Company agrees that the Underwriters will be permitted to appoint, at their sole expense, other registered dealers or brokers as their agents to assist in the distribution of the several Securities. The Underwriters Ladies shall, and Gentlemen: This letter is being delivered shall require any such dealer or broker, other than the Underwriters, with which the Underwriters have a contractual relationship in respect of the distribution of the Securities (a “Selling Firm”), to you comply with the applicable provisions of the Act in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), between Hecla Mining Company, a Delaware corporation (the “Company”), and you as Representatives of a group of Underwriters named therein, relating to an underwritten public offering of shares of common stock, par value $0.25 per share, of the Company. In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned not including the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations distribution of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of shall offer the Company or any securities convertible into, or exercisable or exchangeable Securities for such capital stock, or publicly announce an intention sale to effect any such transaction, for a period beginning on the date hereof public directly and continuing for 90 days after the date of the Underwriting Agreement (the “Lock-Up Period”), other than (i) capital stock disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc.; provided that the donee agrees in writing to be bound by through Selling Firms upon the terms of this letter, (ii) capital stock that (when aggregated with all other shares of capital stock disposed of by executive officers and directors of the Company during such period) does not exceed 75,000 shares of capital stock, (iii) capital stock contributed by the Company to its 401(k), retirement, and employee benefit plans in the ordinary course of business and reallocation of funds within such accounts by the participants in or trustees or administrators of such plans, and (iv) capital stock disposed of under the Rule 10b5-1 trading plans or programs in existence of the date hereof. If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement conditions set forth above shall likewise be terminated. Yours very truly, [SIGNATURE] [NAME AND ADDRESS] Hecla Limited Hecla Alaska LLC ▇▇▇▇▇ Trading, Inc. Hecla Admiralty Company The selling restrictions are stated under the caption “Underwriting” out in the Final ProspectusProspectus and this Agreement. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as representatives of the several The Underwriters Ladies and Gentlemen: We have acted as special counsel to Hecla Mining Company, a Delaware corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-3ASR (No. 333-145919) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”), including the information deemed to be a part of any such registration statement at the time of effectiveness pursuant to Rule 430A under the 1933 Act (the “Registration Statement”)shall, and the prospectus dated September 7shall require any Selling Firm, 2007, together with the preliminary prospectus supplement dated September 2, 2008 (together with the Issuer Free Writing Prospectuses identified on Schedule II of the Underwriting Agreement and the pricing press release filed on Form 8-K on [date], the “Disclosure Package”) and the final prospectus supplement dated September 8, 2008 forming part of the Registration Statement (together with the Disclosure Package, the “Prospectus”), covering (i) the to offer for sale by the Company of shares of common stock, par value $0.25 per share (the “Common Stock”), of the Company and the purchase by each of the Underwriters named in Schedule I to the Underwriting Agreement public and sell the Shares only in those jurisdictions where they may be lawfully offered for sale or sold.
(as defined belowb) (collectively, the “Underwriters”) of the respective numbers of shares of Common Stock set forth in Schedule I to the Underwriting Agreement and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) of the Underwriting Agreement to purchase up to 4,000,000 additional shares of Common Stock to cover over-allotments, if any, pursuant to the Underwriting Agreement dated September 8, 2008 (the “Underwriting Agreement”) among the Company and you, as representatives of the Underwriters. This opinion is furnished to you pursuant to Section 6(b) of the Underwriting Agreement. Capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to such terms in the Underwriting Agreement. In this connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of: (1) the Underwriting Agreement; (2) the Registration Statement; (3) the Prospectus; (4) the Company Agreements (as defined below); (5) resolutions adopted by the Board of Directors of the Company and the Executive Committee of the Board of Directors of the Company; (6) a specimen certificate evidencing the Securities; (7) the Certificate of Incorporation and By-laws of the Company; (8) a certificate of the Secretary of the State of Delaware as to the existence of the Company; and (9) such corporate and other records, certificates, documents and other papers as we deemed it necessary to examine for the purpose of this opinion. Based on Notwithstanding the foregoing, in reliance upon an Underwriter will not be liable for any breach under this Exhibit A by another Underwriter if the assumptions set forth herein and subject to the qualifications herein contained, we are of the opinion that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in each domestic jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to the Underwriting Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Disclosure Package and the Final Prospectus or pursuant to the exercise of convertible securities or options referred to in the Disclosure Package or the Final Prospectus); the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company.
(v) Each domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; to the best of our knowledge all of the issued and outstanding capital stock of each domestic Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the best of our knowledge, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except as provided in that certain Amended and Restated Credit Agreement dated as of April 16, 2008 by and among the Company, The Bank of Nova Scotia, as administrative agent for the lenders, and the various financial institutions and other persons from time to time parties thereto and the related security agreement and pledge agreement, as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; none of the outstanding shares of capital stock of any domestic Significant Subsidiary was issued in violation of the preemptive or similar rights of any security holder of such domestic Significant Subsidiary.
(vi) To the best of our knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments (collectively, the “Company Agreements”) required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement, other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto in the Prospectus are correct in all material respects as to legal matters.
(vii) We are not aware of any authorization, approval, consent or order of any agency, governmental authority or court (other than under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the rules and regulations of the New York Stock Exchange, or as may be required under the securities or blue sky laws of the various states or foreign jurisdictions as to which we are not required to, and does not, express an opinion), that is required for the due authorization, issuance, sale or delivery of the Securities.
(viii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(ix) The Securities have been duly and validly authorized, and upon issuance and delivery of the Securities in accordance with the Underwriting Agreement, the Securities will be validly issued and will be fully paid and non-assessable and no holder of such Securities is or will be subject to personal liability by reason of being such a holder.
(x) The Securities conform in all material respects as to legal matters to the description thereof in the Registration Statement and the Prospectus.
(xi) The issuance of the Securities Underwriter first mentioned is not subject to preemptive or other similar rights itself also in breach of any security holder of the Company under applicable law, the Certificate of Incorporation or By-Laws of the Company, or, to our knowledge, any contract or agreement of the Company.
(xii) The statements made in the Prospectus under the caption “Description of Capital Stock – Common Stock,” to the extent they constitute matters of law or legal conclusions, have been reviewed by us and fairly present the information disclosed therein in all material respects.
(xiii) To the best of our knowledge, there are no statutes or regulations that are required to be described in the Prospectus that are not described as required.
(xiv) The Registration Statement, including any Rule 462(b) Registration Statement, has been declared effective under the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(xv) The Registration Statement (including the Rule 430A Information and any Rule 462(b) Registration Statement, as applicable) and the Prospectus, and each amendment or supplement thereto (except for the financial statements, financial schedules and other financial data included therein or omitted therefrom, as to which we are not required to, and do not, express an opinion), as of their respective effective or issue dates, complied as to form in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations.
(xvi) omitted.
(xvii) The form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Certificate of Incorporation and By-laws of the Company and the requirements of the New York Stock Exchange.
(xviii) To the best of our knowledge, except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any subsidiary is a party, or to which the property of the Company or any subsidthis Exhibit A.
Appears in 1 contract
Sources: Underwriting Agreement (Prospect Global Resources Inc.)
Arm’s Length Transaction. The Company company acknowledges and agrees that each of the Underwriters are is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an any agent of, the Company or any other person. Additionally, neither the Representatives nor any other no Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between among the Company and the several Underwriters. Very truly yours, HECLA MINING HEWLETT-PACKARD COMPANY By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Title: Senior Vice President The foregoing Agreement is hereby confirmed and accepted as of the date first above written. ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Senior Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. By: /s/ Marc Fratepietro Name: Marc Fratepietro Title: Managing Director By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Director ▇.▇. ▇▇▇▇▇▇ SECURITIES LLC By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Title: Executive Director RBS SECURITIES INC. By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Authorized Signatory SCOTIA CAPITAL (USA) INC. By: /s/ A. ▇▇▇▇▇▇ Name: ▇▇▇▇ A. ▇▇▇▇▇▇ ▇▇▇▇ Authorized Signatory For themselves and the other several Underwriters named in Schedule I. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 12,400,000 Scotia Capital (USA) Inc. 7,750,000 BMO Capital Markets Corp. 5,425,000 RBC Capital Markets Corporation 5,425,000 A first Issuer Free Writing Prospectus, dated September 3, 2008 A second Issuer Free Writing Prospectus, dated September 3, 2008 Price per share to the public: $5.00 Offering Size: 31,000,000 shares Over-allotment Option: 4,000,000 shares, if the Underwriters exercise their option to purchase additional shares in full Closing Date: September 12, 2008 September , 2008 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Title: Managing Director For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. Underwriting Agreement: Dated May 25, 2011 Registration Statement No.: 333-159366 Representatives: Deutsche Bank Securities Inc. ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ As Representatives of the several Underwriters Ladies and Gentlemen: This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), between Hecla Mining Company, a Delaware corporation (the “Company”), and you as Representatives of a group of Underwriters named therein, relating to an underwritten public offering of shares of common stock, par value $0.25 per share, of the Company. In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned not including the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period beginning on the date hereof and continuing for 90 days after the date of the Underwriting Agreement (the “Lock-Up Period”), other than (i) capital stock disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc.; provided that the donee agrees in writing to be bound by the terms of this letter, (ii) capital stock that (when aggregated with all other shares of capital stock disposed of by executive officers and directors of the Company during such period) does not exceed 75,000 shares of capital stock, (iii) capital stock contributed by the Company to its 401(k), retirement, and employee benefit plans in the ordinary course of business and reallocation of funds within such accounts by the participants in or trustees or administrators of such plans, and (iv) capital stock disposed of under the Rule 10b5-1 trading plans or programs in existence of the date hereof. If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated. Yours very truly, [SIGNATURE] [NAME AND ADDRESS] Hecla Limited Hecla Alaska LLC ▇▇▇▇▇ Trading, Inc. Hecla Admiralty Company The selling restrictions are stated under the caption “Underwriting” in the Final Prospectus. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as representatives of the several Underwriters Ladies and Gentlemen: We have acted as special counsel to Hecla Mining Company, a Delaware corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-3ASR (No. 333-145919) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”), including the information deemed to be a part of any such registration statement at the time of effectiveness pursuant to Rule 430A under the 1933 Act (the “Registration Statement”), and the prospectus dated September 7, 2007, together with the preliminary prospectus supplement dated September 2, 2008 (together with the Issuer Free Writing Prospectuses identified on Schedule II of the Underwriting Agreement and the pricing press release filed on Form 8-K on [date], the “Disclosure Package”) and the final prospectus supplement dated September 8, 2008 forming part of the Registration Statement (together with the Disclosure Package, the “Prospectus”), covering (i) the sale by the Company of shares of common stock, par value $0.25 per share (the “Common Stock”), of the Company and the purchase by each of the Underwriters named in Schedule I to the Underwriting Agreement (as defined below) (collectively, the “Underwriters”) of the respective numbers of shares of Common Stock set forth in Schedule I to the Underwriting Agreement and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) of the Underwriting Agreement to purchase up to 4,000,000 additional shares of Common Stock to cover over-allotments, if any, pursuant to the Underwriting Agreement dated September 8, 2008 (the “Underwriting Agreement”) among the Company and you, as representatives of the Underwriters. This opinion is furnished to you pursuant to Section 6(b) of the Underwriting Agreement. Capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to such terms in the Underwriting Agreement. In this connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of: (1) the Underwriting Agreement; (2) the Registration Statement; (3) the Prospectus; (4) the Company Agreements (as defined below); (5) resolutions adopted by the Board of Directors of the Company and the Executive Committee of the Board of Directors of the Company; (6) a specimen certificate evidencing the Securities; (7) the Certificate of Incorporation and By-laws of the Company; (8) a certificate of the Secretary of the State of Delaware as to the existence of the Company; and (9) such corporate and other records, certificates, documents and other papers as we deemed it necessary to examine for the purpose of this opinion. Based on the foregoing, in reliance upon the assumptions set forth herein and subject to the qualifications herein contained, we are of the opinion that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in each domestic jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to the Underwriting Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Disclosure Package and the Final Prospectus or pursuant to the exercise of convertible securities or options referred to in the Disclosure Package or the Final Prospectus); the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company.
(v) Each domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; to the best of our knowledge all of the issued and outstanding capital stock of each domestic Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the best of our knowledge, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except as provided in that certain Amended and Restated Credit Agreement dated as of April 16, 2008 by and among the Company, The Bank of Nova Scotia, as administrative agent for the lenders, and the various financial institutions and other persons from time to time parties thereto and the related security agreement and pledge agreement, as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; none of the outstanding shares of capital stock of any domestic Significant Subsidiary was issued in violation of the preemptive or similar rights of any security holder of such domestic Significant Subsidiary.
(vi) To the best of our knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments (collectively, the “Company Agreements”) required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement, other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto in the Prospectus are correct in all material respects as to legal matters.
(vii) We are not aware of any authorization, approval, consent or order of any agency, governmental authority or court (other than under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the rules and regulations of the New York Stock Exchange, or as may be required under the securities or blue sky laws of the various states or foreign jurisdictions as to which we are not required to, and does not, express an opinion), that is required for the due authorization, issuance, sale or delivery of the Securities.
(viii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(ix) The Securities have been duly and validly authorized, and upon issuance and delivery of the Securities in accordance with the Underwriting Agreement, the Securities will be validly issued and will be fully paid and non-assessable and no holder of such Securities is or will be subject to personal liability by reason of being such a holder.
(x) The Securities conform in all material respects as to legal matters to the description thereof in the Registration Statement and the Prospectus.
(xi) The issuance of the Securities is not subject to preemptive or other similar rights of any security holder of the Company under applicable law, the Certificate of Incorporation or By-Laws of the Company, or, to our knowledge, any contract or agreement of the Company.
(xii) The statements made in the Prospectus under the caption “Description of Capital Stock – Common Stock,” to the extent they constitute matters of law or legal conclusions, have been reviewed by us and fairly present the information disclosed therein in all material respects.
(xiii) To the best of our knowledge, there are no statutes or regulations that are required to be described in the Prospectus that are not described as required.
(xiv) The Registration Statement, including any Rule 462(b) Registration Statement, has been declared effective under the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(xv) The Registration Statement (including the Rule 430A Information and any Rule 462(b) Registration Statement, as applicable) and the Prospectus, and each amendment or supplement thereto (except for the financial statements, financial schedules and other financial data included therein or omitted therefrom, as to which we are not required to, and do not, express an opinion), as of their respective effective or issue dates, complied as to form in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations.
(xvi) omitted.
(xvii) The form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Certificate of Incorporation and By-laws of the Company and the requirements of the New York Stock Exchange.
(xviii) To the best of our knowledge, except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any subsidiary is a party, or to which the property of the Company or any subsid
Appears in 1 contract
Arm’s Length Transaction. The Company acknowledges and agrees that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, neither the Representatives nor any other Underwriter is no Underwriters are advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between the Company and the several Underwriters. Very truly yours, HECLA MINING COMPANY PROSPECT GLOBAL RESOURCES INC. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ . Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Title: Senior Vice President Chief Financial Officer The foregoing Agreement is hereby confirmed and accepted as of the date first above written. ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Authorized Signatory SCOTIA ▇▇▇▇ CAPITAL (USA) PARTNERS, LLC By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Authorized Signatory STERNE AGEE & ▇▇▇▇▇, INC. By: /s/ A. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Authorized Signatory ▇▇▇▇▇▇▇▇▇▇ SECURITIES, INC. By: /s/ ▇▇▇▇▇▇ Gaia Authorized Signatory GILFORD SECURITIES INCORPORATED By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Authorized Signatory ▇▇▇▇▇▇▇ ▇▇▇▇ A. & Company 5,005,000 ▇▇▇▇ Capital Partners, LLC 4,235,000 Sterne Agee & ▇▇▇▇▇▇ ▇▇▇▇ Authorized Signatory For themselves and the other several Underwriters named in Schedule I. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 12,400,000 Scotia Capital (USA) Inc. 7,750,000 BMO Capital Markets Corp. 5,425,000 RBC Capital Markets Corporation 5,425,000 A first Issuer Free Writing Prospectus, dated September 3, 2008 A second Issuer Free Writing Prospectus, dated September 3, 2008 Price per share to the public: $5.00 Offering Size: 31,000,000 shares Over-allotment Option: 4,000,000 shares, if the Underwriters exercise their option to purchase additional shares in full Closing Date: September 12, 2008 September , 2008 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ 3,696,000 ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇Securities, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ As Representatives Inc. 2,310,000 Gilford Securities Incorporated 154,000 Total 15,400,000 Pricing Term Sheet, dated June 29, 2012, in the form filed with the Commission. Issue Price $2.60 Underwriting Commission $0.182 (7.0% of issue price) Aggregate Number of Shares (including Option Shares) 15,400,000 (17,710,000) Expected Closing Date July 5, 2012
(a) The Company agrees that the Underwriters will be permitted to appoint, at their sole expense, other registered dealers or brokers as their agents to assist in the distribution of the several Securities. The Underwriters Ladies shall, and Gentlemen: This letter is being delivered shall require any such dealer or broker, other than the Underwriters, with which the Underwriters have a contractual relationship in respect of the distribution of the Securities (a “Selling Firm”), to you comply with the applicable provisions of the Act in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), between Hecla Mining Company, a Delaware corporation (the “Company”), and you as Representatives of a group of Underwriters named therein, relating to an underwritten public offering of shares of common stock, par value $0.25 per share, of the Company. In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned not including the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations distribution of the Securities and Exchange Commission promulgated thereunder with respect toshall offer the Securities for sale to the public directly and through Selling Firms upon the terms and conditions set out in the Final Prospectus and this Agreement. The Underwriters shall, and shall require any shares Selling Firm, to offer for sale to the public and sell the Shares only in those jurisdictions where they may be lawfully offered for sale or sold.
(b) Notwithstanding the foregoing, an Underwriter will not be liable for any breach under this Exhibit A by another Underwriter if the Underwriter first mentioned is not itself also in breach of capital stock of this Exhibit A.
1. The Company has the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention necessary corporate power and authority to effect any such transaction, for a period beginning on execute and deliver the date hereof and continuing for 90 days after the date of the Underwriting Agreement (the “Lock-Up Period”), other than (i) capital stock disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated Agreement and Scotia Capital (USA) Inc.; provided that the donee agrees in writing to be bound by the terms of this letter, (ii) capital stock that (when aggregated with all other shares of capital stock disposed of by executive officers and directors each of the Company during such period) does not exceed 75,000 shares of capital stock, (iii) capital stock contributed by the Company to its 401(k), retirement, and employee benefit plans in the ordinary course of business and reallocation of funds within such accounts by the participants in or trustees or administrators of such plans, and (iv) capital stock disposed of under the Rule 10b5-1 trading plans or programs in existence of the date hereof. If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement)Registration Statement, the agreement set forth above shall likewise be terminated. Yours very trulyBase Prospectus, [SIGNATURE] [NAME AND ADDRESS] Hecla Limited Hecla Alaska LLC ▇▇▇▇▇ Tradingthe Preliminary Prospectus, Inc. Hecla Admiralty Company The selling restrictions are stated under the caption “Underwriting” in the Final Prospectus. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as representatives of the several Underwriters Ladies Prospectus and Gentlemen: We have acted as special counsel to Hecla Mining Company, a Delaware corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-3ASR (No. 333-145919) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”), including the information deemed to be a part of any such registration statement at the time of effectiveness pursuant to Rule 430A under the 1933 Act (the “Registration Statement”), and the prospectus dated September 7, 2007, together with the preliminary prospectus supplement dated September 2, 2008 (together with the Issuer Free Writing Prospectuses identified on Schedule II of the Underwriting Agreement and the pricing press release filed on Form 8-K on [date], the “Disclosure Package”) and the final prospectus supplement dated September 8, 2008 forming part of the Registration Statement (together with the Disclosure Package, the “Prospectus”), covering (i) the sale by the Company of shares of common stock, par value $0.25 per share (the “Common Stock”), of the Company and the purchase by each of the Underwriters named in Schedule I to the Underwriting Agreement (as defined below) Prospectus (collectively, the “UnderwritersProspectuses”) of the respective numbers of shares of Common Stock set forth in Schedule I to the Underwriting Agreement and (ii) the grant ). All necessary corporate action has been taken by the Company to authorize the Underwriters, acting severally execution and not jointly, delivery by it of the option described in Section 2(b) of Agreement and each Prospectus and the Underwriting Agreement to purchase up to 4,000,000 additional shares of Common Stock to cover over-allotments, if any, pursuant to the Underwriting Agreement dated September 8, 2008 (the “Underwriting Agreement”) among performance by the Company and you, as representatives of the Underwriters. This opinion is furnished to you pursuant to Section 6(b) of the Underwriting Agreement. Capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to such terms in the Underwriting Agreement. In this connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of: (1) the Underwriting Agreement; (2) the Registration Statement; (3) the Prospectus; (4) the Company Agreements (as defined below); (5) resolutions adopted by the Board of Directors of the Company and the Executive Committee of the Board of Directors of the Company; (6) a specimen certificate evidencing the Securities; (7) the Certificate of Incorporation and By-laws of the Company; (8) a certificate of the Secretary of the State of Delaware as to the existence of the Company; and (9) such corporate and other records, certificates, documents and other papers as we deemed it necessary to examine for the purpose of this opinion. Based on the foregoing, in reliance upon the assumptions set forth herein and subject to the qualifications herein contained, we are of the opinion that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(iii) thereunder. The Company is duly qualified as a foreign corporation to transact business and is in good standing in each domestic jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to the Underwriting Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Disclosure Package and the Final Prospectus or pursuant to the exercise of convertible securities or options referred to in the Disclosure Package or the Final Prospectus); the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company.
(v) Each domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; to the best of our knowledge all of the issued and outstanding capital stock of each domestic Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the best of our knowledge, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except as provided in that certain Amended and Restated Credit Agreement dated as of April 16, 2008 by and among the Company, The Bank of Nova Scotia, as administrative agent for the lenders, and the various financial institutions and other persons from time to time parties thereto and the related security agreement and pledge agreement, as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; none of the outstanding shares of capital stock of any domestic Significant Subsidiary was issued in violation of the preemptive or similar rights of any security holder of such domestic Significant Subsidiary.
(vi) To the best of our knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments (collectively, the “Company Agreements”) required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement, other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto in the Prospectus are correct in all material respects as to legal matters.
(vii) We are not aware of any authorization, approval, consent or order of any agency, governmental authority or court (other than under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the rules and regulations of the New York Stock Exchange, or as may be required under the securities or blue sky laws of the various states or foreign jurisdictions as to which we are not required to, and does not, express an opinion), that is required for the due authorization, issuance, sale or delivery of the Securities.
(viii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(ix) The Securities have been duly and validly authorized, and upon issuance and delivery of the Securities 2. When issued in accordance with the Underwriting provisions of the Agreement, the Securities will be validly issued and will be issued, fully paid and non-assessable and no holder of such Securities is or will be subject to personal liability by reason of being such a holderassessable.
3. Based solely upon telephone communications between an attorney of this firm and a member of the Securities and Exchange Commission (x“SEC”) The Securities conform in all material respects as to legal matters to the description thereof in staff, the Registration Statement and the Prospectus.
(xi) The issuance of has become effective under the Securities is not subject to preemptive or other similar rights of any security holder of the Company under applicable law, the Certificate of Incorporation or By-Laws of the Company, or, to Act. To our knowledge, any contract or agreement no stop order suspending the effectiveness of the Company.
(xiiRegistration Statement or suspending or preventing the use of the preliminary prospectus filed with the SEC on June 19, 2012 or any other prospectus filed pursuant to Rule 424(b) The statements made in the Prospectus under the caption “Description of Capital Stock – Common Stock,” promulgated pursuant to the extent they constitute matters of law or legal conclusionsSecurities Act (collectively, the “Prospectus”) has been issued and no proceedings for that purpose have been reviewed instituted or are threatened by us and fairly present the information disclosed therein in all material respects.
(xiii) To the best of our knowledge, there are no statutes or regulations that are SEC. The required to be described in the Prospectus that are not described as required.
(xiv) The Registration Statement, including any Rule 462(b) Registration Statement, has been declared effective under the 1933 Act; any required filing filings of the Prospectus pursuant to Rule 424(b) has have been made in the manner and within the time period required by Rule 424(b); and.
4. On the Effective Date, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(xv) The Registration Statement (including the Rule 430A Information and any Rule 462(b) Registration Statement, as applicable) and the Prospectus, and each amendment or supplement thereto (except for the financial statements, financial statements and notes and supporting schedules and other financial data included therein or omitted therefromtherein, as to which we are not required toexpress no opinion) did, and do notwhen the Final Prospectus is first filed in accordance with Rule 424(b) and on the date hereof, the Final Prospectus (and any supplement thereto) (except for the financial statements and notes and supporting schedules included therein, as to which we express an no opinion) complied or will comply, as applicable, as to form in all material respects with the applicable requirements of the Act; as of the Applicable Time and the date hereof, the Disclosure Package (except for the financial statements and notes and supporting schedules included therein, as to which we express no opinion), complied or will comply, as applicable, as to form in all material respects with the requirements of their respective effective or issue datesthe Act.
5. The documents incorporated by reference in the Registration Statement, the Prospectus and the Disclosure Package (except for the exhibits thereto, financial statements and notes and supporting schedules included therein, as to which we express no opinion)), when they were filed with the SEC, complied as to form in all material respects to with the requirements of the 1933 Exchange Act.
6. The execution, delivery and performance on the date hereof by the Company of the Agreement do not (i) violate the Corporation Act or the Articles of Incorporation or Bylaws of the Company, or (ii) violate any provision of Applicable Federal Law or any provision of Applicable State Law.
7. No approval or consent of, or registration or filing with, any federal governmental agency or any Nevada governmental agency is required to be obtained or made by the Company under Applicable Federal Law or Applicable State Law or under the Corporation Act in connection with the execution, delivery and performance on the date hereof by the Company of the Agreement or consummation of the transactions contemplated by this Agreement.
8. The Securities have been authorized for listing by the NASDAQ.
9. The Company is not, and immediately following the issuance and sale of the Securities and the 1933 application of the proceeds thereof as described in the Final Prospectus will not be an ‘investment company’ within the meaning of the Investment Company Act Regulationsof 1940, as amended.
(xvi) omitted10. The statements under the caption “Underwriting” in the Disclosure Package and the Final Prospectus, insofar as such statements purport to summarize certain provisions of the Agreement, fairly summarize such provisions in all material respects.
11. Each of the Company and its Subsidiaries has been duly incorporated or, in the case of AWP, has been duly organized as a limited liability company, and is validly existing in good standing under the laws of the jurisdiction of its incorporation or organization with full corporate or limited liability company power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus
12. Each of the Company and its Subsidiaries is duly qualified to do business as a foreign corporation or limited liability company under the laws of each jurisdiction which requires such qualification and in which the failure to qualify would have a Material Adverse Effect.
13. None of the issue and sale of the Securities, the execution and delivery by the Company of the Agreement and the consummation of any other of the transactions contemplated by the Agreement or the fulfillment of the terms thereof will conflict with, result in a breach or violation of, or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries pursuant to (xvii1) the organizational documents of the Company or its Subsidiaries, (2) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument which is either described in the Registration Statement, Disclosure Package and the Final Prospectus or filed or incorporated by reference as an exhibit to the Registration Statement or any document incorporated by reference in the Registration Statement, Base Prospectus, the Preliminary Prospectus and the Final Prospectus and governed by the laws of Nevada, Arizona or the federal laws of the United States, (3) the Corporation Act or Applicable Federal Law, or (4) any judgment, writ, injunction, ruling, order or decree of any U.S. court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its Subsidiaries or any of its or their properties and identified to us by the Company.
14. The form authorized capital stock of certificate used to evidence the Common Stock complies Company conforms in all material respects with all applicable statutory requirements, with any applicable requirements of to the Certificate of Incorporation and By-laws of description thereof contained in the Company Disclosure Package and the requirements Final Prospectus. As of the New York Stock Exchange.
(xviii) To the best of ·, 2012, to our knowledge, except · shares of common stock are issued and outstanding, and such shares of Common Stock have been duly and validly authorized and issued and are fully paid and non-assessable.
15. Except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus there is not pending or threatened any actionProspectus, suitthe Common Stock, proceedingincluding the Securities, inquiry or investigationare free of statutory preemptive rights and preemptive rights under the Company’s organizational documents and, to which our knowledge, contractual preemptive rights, resale rights, rights of first refusal and similar rights.
16. Corporate Stock Transfer, Inc. has been duly appointed by the Company as the Transfer Agent and registrar for the Common Stock, including the Securities.
17. To our knowledge, except as described in the Registration Statement, the Disclosure Package and the Final Prospectus, no person has the right, pursuant to the terms of any contract, agreement or other instrument, to cause the Company to register under the Act any subsidiary is a partyadditional Common Stock not already registered or shares of any other share capital or other equity interest of the Company, or to which include any such shares or interest in the property Registration Statement, the Disclosure Package or the Final Prospectus or the offering contemplated thereby.
18. To our knowledge, the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the Company eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Securities contemplated by the Registration Statement, the Preliminary Prospectus and the Final Prospectus.
19. The statements in the Preliminary Prospectus and the Final Prospectus under the headings “Risk Factors — Risks Related to the Mining Industry — Government regulation may adversely affect our business and results of operations” and “Risk Factors — Risks Related to the Mining Industry — Our activities are subject to environmental laws and regulations that may increase our costs of doing business and restrict our operations,” insofar as such statements summarize U.S. legal matters, agreements, documents or any subsidproceedings discussed therein, are accurate summaries of such legal matters, agreements, documents or proceedings.
Appears in 1 contract
Sources: Underwriting Agreement (Prospect Global Resources Inc.)
Arm’s Length Transaction. The Company company acknowledges and agrees that each of the Underwriters are is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an any agent of, the Company or any other person. Additionally, neither the Representatives nor any other no Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between among the Company and the several Underwriters. Very truly yours, HECLA MINING HEWLETT-PACKARD COMPANY By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Senior Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. INCORPORATED By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Title: Senior Vice President The foregoing Agreement is hereby confirmed and accepted as of the date first above written. ▇▇▇▇▇▇▇ LYNCH, PIERCE, Title: Managing Director BNP PARIBAS SECURITIES CORP. By: /s/ ▇▇▇ ▇▇▇▇▇▇ & Name: ▇▇▇ ▇▇▇▇▇▇ INCORPORATED Title: Managing Director UBS SECURITIES LLC By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Managing Director By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Authorized Signatory SCOTIA CAPITAL (USA) INC. Title: Associate Director ▇▇▇▇▇ FARGO SECURITIES, LLC By: /s/ A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ A. Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Authorized Signatory Title: Director For themselves and the other several Underwriters named in Schedule I. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 12,400,000 Scotia Capital (USA) Inc. 7,750,000 BMO Capital Markets Corp. 5,425,000 RBC Capital Markets Corporation 5,425,000 A first Issuer Free Writing Prospectus, dated September 3, 2008 A second Issuer Free Writing Prospectus, dated September 3, 2008 Price per share to the public: $5.00 Offering Size: 31,000,000 shares Over-allotment Option: 4,000,000 shares, if the Underwriters exercise their option to purchase additional shares in full Closing Date: September 12, 2008 September , 2008 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ As Representatives of the several Underwriters Ladies and Gentlemen: This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), between Hecla Mining Company, a Delaware corporation (the “Company”), and you as Representatives of a group of Underwriters named therein, relating to an underwritten public offering of shares of common stock, par value $0.25 per share, of the Company. In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned not including the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period beginning on the date hereof and continuing for 90 days after the date of the Underwriting Agreement (the “Lock-Up Period”), other than (i) capital stock disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc.; provided that the donee agrees in writing to be bound by the terms of this letter, (ii) capital stock that (when aggregated with all other shares of capital stock disposed of by executive officers and directors of the Company during such period) does not exceed 75,000 shares of capital stock, (iii) capital stock contributed by the Company to its 401(k), retirement, and employee benefit plans in the ordinary course of business and reallocation of funds within such accounts by the participants in or trustees or administrators of such plans, and (iv) capital stock disposed of under the Rule 10b5-1 trading plans or programs in existence of the date hereof. If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated. Yours very truly, [SIGNATURE] [NAME AND ADDRESS] Hecla Limited Hecla Alaska LLC ▇▇▇▇▇ Trading, Inc. Hecla Admiralty Company The selling restrictions are stated under the caption “Underwriting” in the Final Prospectus. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as representatives of the several Underwriters Ladies and Gentlemen: We have acted as special counsel to Hecla Mining Company, a Delaware corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-3ASR (No. 333-145919) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”), including the information deemed to be a part of any such registration statement at the time of effectiveness pursuant to Rule 430A under the 1933 Act (the “Registration Statement”), and the prospectus dated September 7, 2007, together with the preliminary prospectus supplement dated September 2, 2008 (together with the Issuer Free Writing Prospectuses identified on Schedule II of the Underwriting Agreement and the pricing press release filed on Form 8-K on [date], the “Disclosure Package”) and the final prospectus supplement dated September 8, 2008 forming part of the Registration Statement (together with the Disclosure Package, the “Prospectus”), covering (i) the sale by the Company of shares of common stock, par value $0.25 per share (the “Common Stock”), of the Company and the purchase by each of the Underwriters named in Schedule I to the Underwriting Agreement (as defined below) (collectively, the “Underwriters”) of the respective numbers of shares of Common Stock set forth in Schedule I to the Underwriting Agreement and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) of the Underwriting Agreement to purchase up to 4,000,000 additional shares of Common Stock to cover over-allotments, if any, pursuant named in Schedule II to the Underwriting Agreement dated September 8, 2008 (the “Underwriting Agreement”) among the Company and you, as representatives of the Underwriters. This opinion is furnished to you pursuant to Section 6(b) of the Underwriting Agreement. Capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to such terms in the Underwriting Agreement. In this connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of: (1) the Underwriting Agreement; (2) the Registration Statement; (3) the Prospectus; (4) the Company Agreements (as defined below); (5) resolutions adopted by the Board of Directors of the Company and the Executive Committee of the Board of Directors of the Company; (6) a specimen certificate evidencing the Securities; (7) the Certificate of Incorporation and By-laws of the Company; (8) a certificate of the Secretary of the State of Delaware as to the existence of the Company; and (9) such corporate and other records, certificates, documents and other papers as we deemed it necessary to examine for the purpose of this opinion. Based on the foregoing, in reliance upon the assumptions set forth herein and subject to the qualifications herein contained, we are of the opinion that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under the Underwriting foregoing Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in each domestic jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to the Underwriting Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Disclosure Package and the Final Prospectus or pursuant to the exercise of convertible securities or options referred to in the Disclosure Package or the Final Prospectus); the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company.
(v) Each domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; to the best of our knowledge all of the issued and outstanding capital stock of each domestic Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the best of our knowledge, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except as provided in that certain Amended and Restated Credit Agreement dated as of April 16, 2008 by and among the Company, The Bank of Nova Scotia, as administrative agent for the lenders, and the various financial institutions and other persons from time to time parties thereto and the related security agreement and pledge agreement, as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; none of the outstanding shares of capital stock of any domestic Significant Subsidiary was issued in violation of the preemptive or similar rights of any security holder of such domestic Significant Subsidiary.
(vi) To the best of our knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments (collectively, the “Company Agreements”) required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement, other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto in the Prospectus are correct in all material respects as to legal matters.
(vii) We are not aware of any authorization, approval, consent or order of any agency, governmental authority or court (other than under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the rules and regulations of the New York Stock Exchange, or as may be required under the securities or blue sky laws of the various states or foreign jurisdictions as to which we are not required to, and does not, express an opinion), that is required for the due authorization, issuance, sale or delivery of the Securities.
(viii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(ix) The Securities have been duly and validly authorized, and upon issuance and delivery of the Securities in accordance with the Underwriting Agreement, the Securities will be validly issued and will be fully paid and non-assessable and no holder of such Securities is or will be subject to personal liability by reason of being such a holder.
(x) The Securities conform in all material respects as to legal matters to the description thereof in the Registration Statement and the Prospectus.
(xi) The issuance of the Securities is not subject to preemptive or other similar rights of any security holder of the Company under applicable law, the Certificate of Incorporation or By-Laws of the Company, or, to our knowledge, any contract or agreement of the Company.
(xii) The statements made in the Prospectus under the caption “Description of Capital Stock – Common Stock,” to the extent they constitute matters of law or legal conclusions, have been reviewed by us and fairly present the information disclosed therein in all material respects.
(xiii) To the best of our knowledge, there are no statutes or regulations that are required to be described in the Prospectus that are not described as required.
(xiv) The Registration Statement, including any Rule 462(b) Registration Statement, has been declared effective under the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(xv) The Registration Statement (including the Rule 430A Information and any Rule 462(b) Registration Statement, as applicable) and the Prospectus, and each amendment or supplement thereto (except for the financial statements, financial schedules and other financial data included therein or omitted therefrom, as to which we are not required to, and do not, express an opinion), as of their respective effective or issue dates, complied as to form in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations.
(xvi) omitted.
(xvii) The form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Certificate of Incorporation and By-laws of the Company and the requirements of the New York Stock Exchange.
(xviii) To the best of our knowledge, except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any subsidiary is a party, or to which the property of the Company or any subsid
Appears in 1 contract
Arm’s Length Transaction. The Company company acknowledges and agrees that each of the Underwriters are is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an any agent of, the Company or any other person. Additionally, neither the Representatives nor any other no Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between among the Company and the several Underwriters. Very truly yours, HECLA MINING HEWLETT-PACKARD COMPANY By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Senior Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Title: Senior Vice President The foregoing Agreement is hereby confirmed and accepted as of the date first above writtenCREDIT SUISSE SECURITIES (USA) LLC By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇ Title: Director DEUTSCHE BANK SECURITIES INC. By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Director By: /s/ Jacob Greenhart Name: Jacob Greenhart Title: Director GREENWICH CAPITAL MARKETS, INC. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ Title: Managing Director ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED By: /s/ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ Authorized Signatory SCOTIA CAPITAL (USA) INC. Title: Director By: /s/ A. ▇▇▇▇▇▇ ▇▇▇▇ A. ▇▇▇▇▇▇ ▇▇▇▇ Authorized Signatory Yurij Slyz Name: Yurij Slyz Title: Vice President For themselves and the other several Underwriters named in Schedule I. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 12,400,000 Scotia Capital (USA) Inc. 7,750,000 BMO Capital Markets Corp. 5,425,000 RBC Capital Markets Corporation 5,425,000 A first Issuer Free Writing Prospectus, dated September 3, 2008 A second Issuer Free Writing Prospectus, dated September 3, 2008 Price per share to the public: $5.00 Offering Size: 31,000,000 shares Over-allotment Option: 4,000,000 shares, if the Underwriters exercise their option to purchase additional shares in full Closing Date: September 12, 2008 September , 2008 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ As Representatives of the several Underwriters Ladies and Gentlemen: This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), between Hecla Mining Company, a Delaware corporation (the “Company”), and you as Representatives of a group of Underwriters named therein, relating to an underwritten public offering of shares of common stock, par value $0.25 per share, of the Company. In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned not including the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period beginning on the date hereof and continuing for 90 days after the date of the Underwriting Agreement (the “Lock-Up Period”), other than (i) capital stock disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc.; provided that the donee agrees in writing to be bound by the terms of this letter, (ii) capital stock that (when aggregated with all other shares of capital stock disposed of by executive officers and directors of the Company during such period) does not exceed 75,000 shares of capital stock, (iii) capital stock contributed by the Company to its 401(k), retirement, and employee benefit plans in the ordinary course of business and reallocation of funds within such accounts by the participants in or trustees or administrators of such plans, and (iv) capital stock disposed of under the Rule 10b5-1 trading plans or programs in existence of the date hereof. If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated. Yours very truly, [SIGNATURE] [NAME AND ADDRESS] Hecla Limited Hecla Alaska LLC ▇▇▇▇▇ Trading, Inc. Hecla Admiralty Company The selling restrictions are stated under the caption “Underwriting” in the Final Prospectus. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as representatives of the several Underwriters Ladies and Gentlemen: We have acted as special counsel to Hecla Mining Company, a Delaware corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-3ASR (No. 333-145919) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”), including the information deemed to be a part of any such registration statement at the time of effectiveness pursuant to Rule 430A under the 1933 Act (the “Registration Statement”), and the prospectus dated September 7, 2007, together with the preliminary prospectus supplement dated September 2, 2008 (together with the Issuer Free Writing Prospectuses identified on Schedule II of the Underwriting Agreement and the pricing press release filed on Form 8-K on [date], the “Disclosure Package”) and the final prospectus supplement dated September 8, 2008 forming part of the Registration Statement (together with the Disclosure Package, the “Prospectus”), covering (i) the sale by the Company of shares of common stock, par value $0.25 per share (the “Common Stock”), of the Company and the purchase by each of the Underwriters named in Schedule I to the Underwriting Agreement (as defined below) (collectively, the “Underwriters”) of the respective numbers of shares of Common Stock set forth in Schedule I to the Underwriting Agreement and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) of the Underwriting Agreement to purchase up to 4,000,000 additional shares of Common Stock to cover over-allotments, if any, pursuant named in Schedule II to the Underwriting Agreement dated September 8, 2008 (the “Underwriting Agreement”) among the Company and you, as representatives of the Underwriters. This opinion is furnished to you pursuant to Section 6(b) of the Underwriting Agreement. Capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to such terms in the Underwriting Agreement. In this connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of: (1) the Underwriting Agreement; (2) the Registration Statement; (3) the Prospectus; (4) the Company Agreements (as defined below); (5) resolutions adopted by the Board of Directors of the Company and the Executive Committee of the Board of Directors of the Company; (6) a specimen certificate evidencing the Securities; (7) the Certificate of Incorporation and By-laws of the Company; (8) a certificate of the Secretary of the State of Delaware as to the existence of the Company; and (9) such corporate and other records, certificates, documents and other papers as we deemed it necessary to examine for the purpose of this opinion. Based on the foregoing, in reliance upon the assumptions set forth herein and subject to the qualifications herein contained, we are of the opinion that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under the Underwriting foregoing Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in each domestic jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to the Underwriting Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Disclosure Package and the Final Prospectus or pursuant to the exercise of convertible securities or options referred to in the Disclosure Package or the Final Prospectus); the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company.
(v) Each domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; to the best of our knowledge all of the issued and outstanding capital stock of each domestic Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the best of our knowledge, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except as provided in that certain Amended and Restated Credit Agreement dated as of April 16, 2008 by and among the Company, The Bank of Nova Scotia, as administrative agent for the lenders, and the various financial institutions and other persons from time to time parties thereto and the related security agreement and pledge agreement, as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; none of the outstanding shares of capital stock of any domestic Significant Subsidiary was issued in violation of the preemptive or similar rights of any security holder of such domestic Significant Subsidiary.
(vi) To the best of our knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments (collectively, the “Company Agreements”) required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement, other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto in the Prospectus are correct in all material respects as to legal matters.
(vii) We are not aware of any authorization, approval, consent or order of any agency, governmental authority or court (other than under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the rules and regulations of the New York Stock Exchange, or as may be required under the securities or blue sky laws of the various states or foreign jurisdictions as to which we are not required to, and does not, express an opinion), that is required for the due authorization, issuance, sale or delivery of the Securities.
(viii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(ix) The Securities have been duly and validly authorized, and upon issuance and delivery of the Securities in accordance with the Underwriting Agreement, the Securities will be validly issued and will be fully paid and non-assessable and no holder of such Securities is or will be subject to personal liability by reason of being such a holder.
(x) The Securities conform in all material respects as to legal matters to the description thereof in the Registration Statement and the Prospectus.
(xi) The issuance of the Securities is not subject to preemptive or other similar rights of any security holder of the Company under applicable law, the Certificate of Incorporation or By-Laws of the Company, or, to our knowledge, any contract or agreement of the Company.
(xii) The statements made in the Prospectus under the caption “Description of Capital Stock – Common Stock,” to the extent they constitute matters of law or legal conclusions, have been reviewed by us and fairly present the information disclosed therein in all material respects.
(xiii) To the best of our knowledge, there are no statutes or regulations that are required to be described in the Prospectus that are not described as required.
(xiv) The Registration Statement, including any Rule 462(b) Registration Statement, has been declared effective under the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(xv) The Registration Statement (including the Rule 430A Information and any Rule 462(b) Registration Statement, as applicable) and the Prospectus, and each amendment or supplement thereto (except for the financial statements, financial schedules and other financial data included therein or omitted therefrom, as to which we are not required to, and do not, express an opinion), as of their respective effective or issue dates, complied as to form in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations.
(xvi) omitted.
(xvii) The form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Certificate of Incorporation and By-laws of the Company and the requirements of the New York Stock Exchange.
(xviii) To the best of our knowledge, except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any subsidiary is a party, or to which the property of the Company or any subsid
Appears in 1 contract
Arm’s Length Transaction. The Company company acknowledges and agrees that each of the Underwriters are is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an any agent of, the Company or any other person. Additionally, neither the Representatives nor any other no Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between among the Company and the several Underwriters. Very truly yours, HECLA MINING HEWLETT-PACKARD COMPANY By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Senior Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇ Title: Managing Director CREDIT SUISSE SECURITIES (USA) LLC By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Senior Vice President The foregoing Agreement is hereby confirmed and accepted as of the date first above writtenDirector DEUTSCHE BANK SECURITIES INC. By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Director By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LYNCH, PIERCE, Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Director ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ CO. INCORPORATED By: /s/ Yurij Slyz Name: Yurij Slyz Title: Vice President RBS SECURITIES INC. By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Title: Managing Director For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. Underwriting Agreement: Dated May 21, 2009 Registration Statement No.: 333-159366 Representatives: Banc of America Securities LLC ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Credit Suisse Securities (USA) LLC Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Deutsche Bank Securities Inc. ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ RBS Securities Inc. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Authorized Signatory SCOTIA CAPITAL (USA) INC. By: /s/ A. ▇▇▇▇▇▇ ▇▇▇▇ A. ▇▇▇▇▇▇ ▇▇▇▇ Authorized Signatory For themselves and the other several Underwriters named in Schedule I. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 12,400,000 Scotia Capital (USA) Inc. 7,750,000 BMO Capital Markets Corp. 5,425,000 RBC Capital Markets Corporation 5,425,000 A first Issuer Free Writing Prospectus, dated September 3, 2008 A second Issuer Free Writing Prospectus, dated September 3, 2008 Price per share to the public: $5.00 Offering Size: 31,000,000 shares Over-allotment Option: 4,000,000 shares, if the Underwriters exercise their option to purchase additional shares in full Closing Date: September 12, 2008 September , 2008 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ As Representatives of the several Underwriters Ladies and GentlemenCo-Managers: This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), between Hecla Mining Company, a Delaware corporation (the “Company”), and you as Representatives of a group of Underwriters named therein, relating to an underwritten public offering of shares of common stock, par value $0.25 per share, of the Company. In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Barclays Capital (USA) Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned not including the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Inc. BNP Paribas Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Corp. HSBC Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period beginning on the date hereof and continuing for 90 days after the date of the Underwriting Agreement (the “Lock-Up Period”), other than (i) capital stock disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc.; provided that the donee agrees in writing to be bound by the terms of this letter, (ii) capital stock that (when aggregated with all other shares of capital stock disposed of by executive officers and directors of the Company during such period) does not exceed 75,000 shares of capital stock, (iii) capital stock contributed by the Company to its 401(k), retirement, and employee benefit plans in the ordinary course of business and reallocation of funds within such accounts by the participants in or trustees or administrators of such plans, and (iv) capital stock disposed of under the Rule 10b5-1 trading plans or programs in existence of the date hereof. If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated. Yours very truly, [SIGNATURE] [NAME AND ADDRESS] Hecla Limited Hecla Alaska LLC ▇▇▇▇▇ Trading, Inc. Hecla Admiralty Company The selling restrictions are stated under the caption “Underwriting” in the Final Prospectus. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇Mitsubishi UFJ Securities (USA) Inc. Wachovia Capital Markets, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇LLC Title of Securities: Floating Rate Global Notes due May 27, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as representatives 2011 Ranking: Senior unsecured obligations ranking equally with all other senior unsecured indebtedness of the several Underwriters Ladies and Gentlemen: We have acted as special counsel to Hecla Mining Company, a Delaware corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-3ASR (No. 333-145919) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”), including the information deemed to be a part of any such registration statement at the time of effectiveness pursuant to Rule 430A under the 1933 Act (the “Registration Statement”), and the prospectus dated September 7, 2007, together with the preliminary prospectus supplement dated September 2, 2008 (together with the Issuer Free Writing Prospectuses identified on Schedule II of the Underwriting Agreement and the pricing press release filed on Form 8-K on [date], the “Disclosure Package”) and the final prospectus supplement dated September 8, 2008 forming part of the Registration Statement (together with the Disclosure Package, the “Prospectus”), covering (i) the sale by the Company of shares of common stock, par value $0.25 per share (the “Common Stock”), of the Company and the purchase by each of the Underwriters named in Schedule I to the Underwriting Agreement (as defined below) (collectively, the “Underwriters”) of the respective numbers of shares of Common Stock set forth in Schedule I to the Underwriting Agreement and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) of the Underwriting Agreement to purchase up to 4,000,000 additional shares of Common Stock to cover over-allotments, if any, pursuant to the Underwriting Agreement dated September 8, 2008 (the “Underwriting Agreement”) among the Company and you, as representatives of the Underwriters. This opinion is furnished to you pursuant to Section 6(b) of the Underwriting Agreement. Capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to such terms in the Underwriting Agreement. In this connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of: (1) the Underwriting Agreement; (2) the Registration Statement; (3) the Prospectus; (4) the Company Agreements (as defined below); (5) resolutions adopted by the Board of Directors of the Company and the Executive Committee of the Board of Directors of the Company; (6) a specimen certificate evidencing the Securities; (7) the Certificate of Incorporation and By-laws of the Company; (8) a certificate of the Secretary of the State of Delaware as to the existence of the Company; and (9) such corporate and other records, certificates, documents and other papers as we deemed it necessary to examine for the purpose of this opinion. Based on the foregoing, in reliance upon the assumptions set forth herein and subject to the qualifications herein contained, we are of the opinion that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in each domestic jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to the Underwriting Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Disclosure Package and the Final Prospectus or pursuant to the exercise of convertible securities or options referred to in the Disclosure Package or the Final Prospectus); the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company.
(v) Each domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; to the best of our knowledge all of the issued and outstanding capital stock of each domestic Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the best of our knowledge, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except as provided in that certain Amended and Restated Credit Agreement dated as of April 16, 2008 by and among the Company, The Bank of Nova Scotia, as administrative agent for the lenders, and the various financial institutions and other persons HP from time to time parties thereto and the related security agreement and pledge agreement, as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; none of the outstanding shares of capital stock of any domestic Significant Subsidiary was issued in violation of the preemptive or similar rights of any security holder of such domestic Significant Subsidiary.
(vi) To the best of our knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments (collectively, the “Company Agreements”) required Principal Amount: $750,000,000 Interest Rate: Floating rate equal to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement, other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto in the Prospectus are correct in all material respects as to legal matters.
(vii) We are not aware of any authorization, approval, consent or order of any agency, governmental authority or court (other than under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the rules and regulations of the New York Stock Exchange, or as may be required under the securities or blue sky laws of the various states or foreign jurisdictions as to which we are not required to, and does not, express an opinion), that is required for the due authorization, issuance, sale or delivery of the Securities.
(viii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(ix) The Securities have been duly and validly authorized, and upon issuance and delivery of the Securities in accordance with the Underwriting Agreement, the Securities will be validly issued and will be fully paid and nonthree-assessable and no holder of such Securities is or will be subject to personal liability by reason of being such a holder.
(x) The Securities conform in all material respects as to legal matters to the description thereof in the Registration Statement and the Prospectus.
(xi) The issuance of the Securities is not subject to preemptive or other similar rights of any security holder of the Company under applicable law, the Certificate of Incorporation or By-Laws of the Company, or, to our knowledge, any contract or agreement of the Company.
(xii) The statements made in the Prospectus under the caption “Description of Capital Stock – Common Stock,” to the extent they constitute matters of law or legal conclusions, have been reviewed by us and fairly present the information disclosed therein in all material respects.
(xiii) To the best of our knowledge, there are no statutes or regulations that are required to be described in the Prospectus that are not described as required.
(xiv) The Registration Statement, including any Rule 462(b) Registration Statement, has been declared effective under the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(xv) The Registration Statement (including the Rule 430A Information and any Rule 462(b) Registration Statement, as applicable) and the Prospectus, and each amendment or supplement thereto (except for the financial statements, financial schedules and other financial data included therein or omitted therefrom, as to which we are not required to, and do not, express an opinion), as of their respective effective or issue dates, complied as to form in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations.
(xvi) omitted.
(xvii) The form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Certificate of Incorporation and By-laws of the Company and the requirements of the New York Stock Exchange.
(xviii) To the best of our knowledge, except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any subsidiary is a party, or to which the property of the Company or any subsidmonth USD LIBOR plus 1.05% per annum. Purchase Price: 99.85%
Appears in 1 contract
Arm’s Length Transaction. The Company company acknowledges and agrees that each of the Underwriters are is acting solely in the capacity of an arm’s 's length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an any agent of, the Company or any other person. Additionally, neither the Representatives nor any other no Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between among the Company and the several Underwriters. Very truly yours, HECLA MINING HEWLETT-PACKARD COMPANY By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Title: Senior Vice President President, Deputy General Counsel and Assistant Secretary The foregoing Agreement is hereby confirmed and accepted as of on the date first above writtenspecified in Schedule I hereto. CREDIT SUISSE SECURITIES (USA) LLC By: /s/ M. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: M. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Title: Managing Director ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Title: Authorized Signatory ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Authorized Signatory SCOTIA CAPITAL (USA) INC. ByName: /s/ A. ▇▇▇▇▇▇▇ ▇▇▇▇ A. ▇▇▇▇▇▇ ▇▇▇▇ Authorized Signatory Title: Executive Director For themselves and the other several Underwriters named in Schedule I. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 12,400,000 Scotia Capital (USA) Inc. 7,750,000 BMO Capital Markets Corp. 5,425,000 RBC Capital Markets Corporation 5,425,000 A first Issuer Free Writing Prospectus, dated September 3, 2008 A second Issuer Free Writing Prospectus, dated September 3, 2008 Price per share to the public: $5.00 Offering Size: 31,000,000 shares Over-allotment Option: 4,000,000 shares, if the Underwriters exercise their option to purchase additional shares in full Closing Date: September 12, 2008 September , 2008 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ As Representatives of the several Underwriters Ladies and Gentlemen: This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), between Hecla Mining Company, a Delaware corporation (the “Company”), and you as Representatives of a group of Underwriters named therein, relating to an underwritten public offering of shares of common stock, par value $0.25 per share, of the Company. In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned not including the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period beginning on the date hereof and continuing for 90 days after the date of the Underwriting Agreement (the “Lock-Up Period”), other than (i) capital stock disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc.; provided that the donee agrees in writing to be bound by the terms of this letter, (ii) capital stock that (when aggregated with all other shares of capital stock disposed of by executive officers and directors of the Company during such period) does not exceed 75,000 shares of capital stock, (iii) capital stock contributed by the Company to its 401(k), retirement, and employee benefit plans in the ordinary course of business and reallocation of funds within such accounts by the participants in or trustees or administrators of such plans, and (iv) capital stock disposed of under the Rule 10b5-1 trading plans or programs in existence of the date hereof. If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated. Yours very truly, [SIGNATURE] [NAME AND ADDRESS] Hecla Limited Hecla Alaska LLC ▇▇▇▇▇ Trading, Inc. Hecla Admiralty Company The selling restrictions are stated under the caption “Underwriting” in the Final Prospectus. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as representatives of the several Underwriters Ladies and Gentlemen: We have acted as special counsel to Hecla Mining Company, a Delaware corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-3ASR (No. 333-145919) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”), including the information deemed to be a part of any such registration statement at the time of effectiveness pursuant to Rule 430A under the 1933 Act (the “Registration Statement”), and the prospectus dated September 7, 2007, together with the preliminary prospectus supplement dated September 2, 2008 (together with the Issuer Free Writing Prospectuses identified on Schedule II of the Underwriting Agreement and the pricing press release filed on Form 8-K on [date], the “Disclosure Package”) and the final prospectus supplement dated September 8, 2008 forming part of the Registration Statement (together with the Disclosure Package, the “Prospectus”), covering (i) the sale by the Company of shares of common stock, par value $0.25 per share (the “Common Stock”), of the Company and the purchase by each of the Underwriters named in Schedule I to the Underwriting Agreement (as defined below) (collectively, the “Underwriters”) of the respective numbers of shares of Common Stock set forth in Schedule I to the Underwriting Agreement and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) of the Underwriting Agreement to purchase up to 4,000,000 additional shares of Common Stock to cover over-allotments, if any, pursuant named in Schedule II to the Underwriting Agreement dated September 8, 2008 (the “Underwriting Agreement”) among the Company and you, as representatives of the Underwriters. This opinion is furnished to you pursuant to Section 6(b) of the Underwriting foregoing Agreement. Capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to such terms in the Underwriting Agreement. In this connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of: (1) the Underwriting Agreement; (2) the Registration Statement; (3) the Prospectus; (4) the Company Agreements (as defined below); (5) resolutions adopted by the Board of Directors of the Company and the Executive Committee of the Board of Directors of the Company; (6) a specimen certificate evidencing the SCHEDULE I Debt Securities; (7) the Certificate of Incorporation and By-laws of the Company; (8) a certificate of the Secretary of the State of Delaware as to the existence of the Company; and (9) such corporate and other records, certificates, documents and other papers as we deemed it necessary to examine for the purpose of this opinion. Based on the foregoing, in reliance upon the assumptions set forth herein and subject to the qualifications herein contained, we are of the opinion that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in each domestic jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to the Underwriting Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Disclosure Package and the Final Prospectus or pursuant to the exercise of convertible securities or options referred to in the Disclosure Package or the Final Prospectus); the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company.
(v) Each domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; to the best of our knowledge all of the issued and outstanding capital stock of each domestic Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the best of our knowledge, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except as provided in that certain Amended and Restated Credit Agreement dated as of April 16, 2008 by and among the Company, The Bank of Nova Scotia, as administrative agent for the lenders, and the various financial institutions and other persons from time to time parties thereto and the related security agreement and pledge agreement, as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; none of the outstanding shares of capital stock of any domestic Significant Subsidiary was issued in violation of the preemptive or similar rights of any security holder of such domestic Significant Subsidiary.
(vi) To the best of our knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments (collectively, the “Company Agreements”) required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement, other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto in the Prospectus are correct in all material respects as to legal matters.
(vii) We are not aware of any authorization, approval, consent or order of any agency, governmental authority or court (other than under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the rules and regulations of the New York Stock Exchange, or as may be required under the securities or blue sky laws of the various states or foreign jurisdictions as to which we are not required to, and does not, express an opinion), that is required for the due authorization, issuance, sale or delivery of the Securities.
(viii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(ix) The Securities have been duly and validly authorized, and upon issuance and delivery of the Securities in accordance with the Underwriting Agreement, the Securities will be validly issued and will be fully paid and non-assessable and no holder of such Securities is or will be subject to personal liability by reason of being such a holder.
(x) The Securities conform in all material respects as to legal matters to the description thereof in the Registration Statement and the Prospectus.
(xi) The issuance of the Securities is not subject to preemptive or other similar rights of any security holder of the Company under applicable law, the Certificate of Incorporation or By-Laws of the Company, or, to our knowledge, any contract or agreement of the Company.
(xii) The statements made in the Prospectus under the caption “Description of Capital Stock – Common Stock,” to the extent they constitute matters of law or legal conclusions, have been reviewed by us and fairly present the information disclosed therein in all material respects.
(xiii) To the best of our knowledge, there are no statutes or regulations that are required to be described in the Prospectus that are not described as required.
(xiv) The Registration Statement, including any Rule 462(b) Registration Statement, has been declared effective under the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(xv) The Registration Statement (including the Rule 430A Information and any Rule 462(b) Registration Statement, as applicable) and the Prospectus, and each amendment or supplement thereto (except for the financial statements, financial schedules and other financial data included therein or omitted therefrom, as to which we are not required to, and do not, express an opinion), as of their respective effective or issue dates, complied as to form in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations.
(xvi) omitted.
(xvii) The form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Certificate of Incorporation and By-laws of the Company and the requirements of the New York Stock Exchange.
(xviii) To the best of our knowledge, except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any subsidiary is a party, or to which the property of the Company or any subsid
Appears in 1 contract
Arm’s Length Transaction. The Company company acknowledges and agrees that each of the Underwriters are is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an any agent of, the Company or any other person. Additionally, neither the Representatives nor any other no Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between among the Company and the several Underwriters. Very truly yours, HECLA MINING HEWLETT-PACKARD COMPANY By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Senior Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. BARCLAYS CAPITAL INC. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Senior Vice President The foregoing Agreement is hereby confirmed and accepted as of the date first above writtenDirector CITIGROUP GLOBAL MARKETS INC. By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Title: Managing Director ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Authorized Signatory SCOTIA CAPITAL (USA) INCTitle: Managing Director For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. ByUnderwriting Agreement: /s/ A. Dated September 13, 2011 Registration Statement No.: 333-159366 Representatives: Barclays Capital Inc. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ A. ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Citigroup Global Markets Inc. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Authorized Signatory For themselves and the other several Underwriters named in Schedule I. ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 12,400,000 Scotia ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Joint Bookrunners: Barclays Capital (USA) Inc. 7,750,000 BMO Capital Citigroup Global Markets Corp. 5,425,000 RBC Capital Markets Corporation 5,425,000 A first Issuer Free Writing Prospectus, dated September 3, 2008 A second Issuer Free Writing Prospectus, dated September 3, 2008 Price per share to the public: $5.00 Offering Size: 31,000,000 shares Over-allotment Option: 4,000,000 shares, if the Underwriters exercise their option to purchase additional shares in full Closing Date: September 12, 2008 September , 2008 Inc. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital Credit Suisse Securities (USA) LLC HSBC Securities (USA) Inc. One Liberty Plaza ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ As Representatives of the several Underwriters Ladies and Gentlemen: This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), between Hecla Mining Company, a Delaware corporation (the “Company”), and you as Representatives of a group of Underwriters named therein, relating to an underwritten public offering of shares of common stock, par value $0.25 per share, of the Company. In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned not including the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Co. LLC UBS Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the LLC Co-Managers: BNP Paribas Securities Exchange Act of 1934, as amended, and the rules and regulations of the Corp. Deutsche Bank Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period beginning on the date hereof and continuing for 90 days after the date of the Underwriting Agreement (the “Lock-Up Period”), other than (i) capital stock disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc.; provided that the donee agrees in writing to be bound by the terms of this letter, (ii) capital stock that (when aggregated with all other shares of capital stock disposed of by executive officers and directors of the Company during such period) does not exceed 75,000 shares of capital stock, (iii) capital stock contributed by the Company to its 401(k), retirement, and employee benefit plans in the ordinary course of business and reallocation of funds within such accounts by the participants in or trustees or administrators of such plans, and (iv) capital stock disposed of under the Rule 10b5-1 trading plans or programs in existence of the date hereof. If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated. Yours very truly, [SIGNATURE] [NAME AND ADDRESS] Hecla Limited Hecla Alaska LLC ▇▇▇▇▇ Trading, Inc. Hecla Admiralty Company The selling restrictions are stated under the caption “Underwriting” in the Final Prospectus. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ Sachs & Co. Mitsubishi UFJ Securities (USA), Inc. RBS Securities Inc. Santander Investment Securities Inc. SG Americas Securities, LLC U.S. Bancorp Investments, Inc. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇Fargo Securities, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as representatives LLC Title of the several Underwriters Ladies and GentlemenSecurities: We have acted as special counsel to Hecla Mining CompanyFloating Rate Global Notes due September 19, a Delaware corporation (the “Company”), in connection 2014 Ranking: Senior unsecured obligations ranking equally with the Company’s Registration Statement on Form S-3ASR (No. 333-145919) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act all other senior unsecured indebtedness of 1933, as amended (the “1933 Act”), including the information deemed to be a part of any such registration statement at the time of effectiveness pursuant to Rule 430A under the 1933 Act (the “Registration Statement”), and the prospectus dated September 7, 2007, together with the preliminary prospectus supplement dated September 2, 2008 (together with the Issuer Free Writing Prospectuses identified on Schedule II of the Underwriting Agreement and the pricing press release filed on Form 8-K on [date], the “Disclosure Package”) and the final prospectus supplement dated September 8, 2008 forming part of the Registration Statement (together with the Disclosure Package, the “Prospectus”), covering (i) the sale by the Company of shares of common stock, par value $0.25 per share (the “Common Stock”), of the Company and the purchase by each of the Underwriters named in Schedule I to the Underwriting Agreement (as defined below) (collectively, the “Underwriters”) of the respective numbers of shares of Common Stock set forth in Schedule I to the Underwriting Agreement and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) of the Underwriting Agreement to purchase up to 4,000,000 additional shares of Common Stock to cover over-allotments, if any, pursuant to the Underwriting Agreement dated September 8, 2008 (the “Underwriting Agreement”) among the Company and you, as representatives of the Underwriters. This opinion is furnished to you pursuant to Section 6(b) of the Underwriting Agreement. Capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to such terms in the Underwriting Agreement. In this connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of: (1) the Underwriting Agreement; (2) the Registration Statement; (3) the Prospectus; (4) the Company Agreements (as defined below); (5) resolutions adopted by the Board of Directors of the Company and the Executive Committee of the Board of Directors of the Company; (6) a specimen certificate evidencing the Securities; (7) the Certificate of Incorporation and By-laws of the Company; (8) a certificate of the Secretary of the State of Delaware as to the existence of the Company; and (9) such corporate and other records, certificates, documents and other papers as we deemed it necessary to examine for the purpose of this opinion. Based on the foregoing, in reliance upon the assumptions set forth herein and subject to the qualifications herein contained, we are of the opinion that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in each domestic jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to the Underwriting Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Disclosure Package and the Final Prospectus or pursuant to the exercise of convertible securities or options referred to in the Disclosure Package or the Final Prospectus); the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company.
(v) Each domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; to the best of our knowledge all of the issued and outstanding capital stock of each domestic Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the best of our knowledge, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except as provided in that certain Amended and Restated Credit Agreement dated as of April 16, 2008 by and among the Company, The Bank of Nova Scotia, as administrative agent for the lenders, and the various financial institutions and other persons HP from time to time parties thereto outstanding Principal Amount: $350,000,000 Interest Rate: Floating rate equal to three-month USD LIBOR plus 1.55% per annum. Purchase Price: 99.800% Offering Price: 100% Interest Payment Dates: Quarterly; March 19, June 19, September 19 and the related security agreement and pledge agreementDecember 19 of each year, as disclosed in the Registration Statementcommencing December 19, the Disclosure Package and the Final Prospectus; none of the outstanding shares of capital stock of any domestic Significant Subsidiary was issued in violation of the preemptive or similar rights of any security holder of such domestic Significant Subsidiary.
2011 (vi) To the best of our knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments (collectively, the “Company Agreements”) required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits subject to the Registration Statementfollowing business day convention). Interest Reset Dates: Quarterly; March 19, other than those described or referred to therein or filed or incorporated by reference as exhibits theretoJune 19, September 19 and the descriptions thereof or references thereto in the Prospectus are correct in all material respects as to legal matters.
December 19 of each year, commencing December 19, 2011 (vii) We are not aware of any authorization, approval, consent or order of any agency, governmental authority or court (other than under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the rules and regulations of the New York Stock Exchange, or as may be required under the securities or blue sky laws of the various states or foreign jurisdictions as to which we are not required to, and does not, express an opinion), that is required for the due authorization, issuance, sale or delivery of the Securities.
(viii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(ix) The Securities have been duly and validly authorized, and upon issuance and delivery of the Securities in accordance with the Underwriting Agreement, the Securities will be validly issued and will be fully paid and non-assessable and no holder of such Securities is or will be subject to personal liability by reason of being such a holderthe following business day convention).
(x) The Securities conform in all material respects as to legal matters to the description thereof in the Registration Statement and the Prospectus.
(xi) The issuance of the Securities is not subject to preemptive or other similar rights of any security holder of the Company under applicable law, the Certificate of Incorporation or By-Laws of the Company, or, to our knowledge, any contract or agreement of the Company.
(xii) The statements made in the Prospectus under the caption “Description of Capital Stock – Common Stock,” to the extent they constitute matters of law or legal conclusions, have been reviewed by us and fairly present the information disclosed therein in all material respects.
(xiii) To the best of our knowledge, there are no statutes or regulations that are required to be described in the Prospectus that are not described as required.
(xiv) The Registration Statement, including any Rule 462(b) Registration Statement, has been declared effective under the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(xv) The Registration Statement (including the Rule 430A Information and any Rule 462(b) Registration Statement, as applicable) and the Prospectus, and each amendment or supplement thereto (except for the financial statements, financial schedules and other financial data included therein or omitted therefrom, as to which we are not required to, and do not, express an opinion), as of their respective effective or issue dates, complied as to form in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations.
(xvi) omitted.
(xvii) The form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Certificate of Incorporation and By-laws of the Company and the requirements of the New York Stock Exchange.
(xviii) To the best of our knowledge, except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any subsidiary is a party, or to which the property of the Company or any subsid
Appears in 1 contract
Arm’s Length Transaction. The Company company acknowledges and agrees that each of the Underwriters are is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an any agent of, the Company or any other person. Additionally, neither the Representatives nor any other no Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between among the Company and the several Underwriters. Very truly yours, HECLA MINING HEWLETT-PACKARD COMPANY By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Acting General Counsel, Vice The foregoing Agreement is hereby President and Assistant Secretary confirmed and accepted on the date specified in Schedule I hereto. By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Director DEUTSCHE BANK SECURITIES INC. By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Title: Managing Director By: /s/ NIGEL ▇.▇. ▇▇▇▇ Name: Nigel ▇.▇. ▇▇▇▇ Title: Managing Director/Debt Syndicate ▇.▇. ▇▇▇▇▇▇ SECURITIES INC. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Title: Senior Vice President The foregoing Agreement is hereby confirmed and accepted as of the date first above written. ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Vice President For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. Underwriting Agreement: Dated February 22, 2007 Registration Statement No.: 333-134327 Representatives: Citigroup Global Markets Inc. Deutsche Bank Securities Inc. ▇.▇▇▇ ▇▇. ▇▇▇▇▇▇ Authorized Signatory SCOTIA CAPITAL (USA) INC. BySecurities Inc. Title of Securities: /s/ A. ▇▇▇▇▇▇ ▇▇▇▇ A. ▇▇▇▇▇▇ ▇▇▇▇ Authorized Signatory For themselves and the other several Underwriters named in Schedule I. ▇▇▇▇▇▇▇ LynchFloating Rate Global Notes due March 1, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 12,400,000 Scotia Capital (USA) Inc. 7,750,000 BMO Capital Markets Corp. 5,425,000 RBC Capital Markets Corporation 5,425,000 A first Issuer Free Writing Prospectus, dated September 3, 2008 A second Issuer Free Writing Prospectus, dated September 3, 2008 Price per share to the public2012 Ranking: $5.00 Offering Size: 31,000,000 shares Over-allotment Option: 4,000,000 shares, if the Underwriters exercise their option to purchase additional shares in full Closing Date: September 12, 2008 September , 2008 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ As Representatives of the several Underwriters Ladies and Gentlemen: This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), between Hecla Mining Company, a Delaware corporation (the “Company”), and you as Representatives of a group of Underwriters named therein, relating to an underwritten public offering of shares of common stock, par value $0.25 per share, of the Company. In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned not including the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period beginning on the date hereof and continuing for 90 days after the date of the Underwriting Agreement (the “Lock-Up Period”), other than (i) capital stock disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc.; provided that the donee agrees in writing to be bound by the terms of this letter, (ii) capital stock that (when aggregated Senior unsecured obligations ranking equally with all other shares senior unsecured indebtedness of capital stock disposed of by executive officers and directors of the Company during such period) does not exceed 75,000 shares of capital stock, (iii) capital stock contributed by the Company to its 401(k), retirement, and employee benefit plans in the ordinary course of business and reallocation of funds within such accounts by the participants in or trustees or administrators of such plans, and (iv) capital stock disposed of under the Rule 10b5-1 trading plans or programs in existence of the date hereof. If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated. Yours very truly, [SIGNATURE] [NAME AND ADDRESS] Hecla Limited Hecla Alaska LLC ▇▇▇▇▇ Trading, Inc. Hecla Admiralty Company The selling restrictions are stated under the caption “Underwriting” in the Final Prospectus. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as representatives of the several Underwriters Ladies and Gentlemen: We have acted as special counsel to Hecla Mining Company, a Delaware corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-3ASR (No. 333-145919) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”), including the information deemed to be a part of any such registration statement at the time of effectiveness pursuant to Rule 430A under the 1933 Act (the “Registration Statement”), and the prospectus dated September 7, 2007, together with the preliminary prospectus supplement dated September 2, 2008 (together with the Issuer Free Writing Prospectuses identified on Schedule II of the Underwriting Agreement and the pricing press release filed on Form 8-K on [date], the “Disclosure Package”) and the final prospectus supplement dated September 8, 2008 forming part of the Registration Statement (together with the Disclosure Package, the “Prospectus”), covering (i) the sale by the Company of shares of common stock, par value $0.25 per share (the “Common Stock”), of the Company and the purchase by each of the Underwriters named in Schedule I to the Underwriting Agreement (as defined below) (collectively, the “Underwriters”) of the respective numbers of shares of Common Stock set forth in Schedule I to the Underwriting Agreement and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) of the Underwriting Agreement to purchase up to 4,000,000 additional shares of Common Stock to cover over-allotments, if any, pursuant to the Underwriting Agreement dated September 8, 2008 (the “Underwriting Agreement”) among the Company and you, as representatives of the Underwriters. This opinion is furnished to you pursuant to Section 6(b) of the Underwriting Agreement. Capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to such terms in the Underwriting Agreement. In this connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of: (1) the Underwriting Agreement; (2) the Registration Statement; (3) the Prospectus; (4) the Company Agreements (as defined below); (5) resolutions adopted by the Board of Directors of the Company and the Executive Committee of the Board of Directors of the Company; (6) a specimen certificate evidencing the Securities; (7) the Certificate of Incorporation and By-laws of the Company; (8) a certificate of the Secretary of the State of Delaware as to the existence of the Company; and (9) such corporate and other records, certificates, documents and other papers as we deemed it necessary to examine for the purpose of this opinion. Based on the foregoing, in reliance upon the assumptions set forth herein and subject to the qualifications herein contained, we are of the opinion that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in each domestic jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to the Underwriting Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Disclosure Package and the Final Prospectus or pursuant to the exercise of convertible securities or options referred to in the Disclosure Package or the Final Prospectus); the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company.
(v) Each domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; to the best of our knowledge all of the issued and outstanding capital stock of each domestic Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the best of our knowledge, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except as provided in that certain Amended and Restated Credit Agreement dated as of April 16, 2008 by and among the Company, The Bank of Nova Scotia, as administrative agent for the lenders, and the various financial institutions and other persons HP from time to time parties thereto outstanding Principal Amount: $600 million Interest Rate: Floating rate equal to three-month USD LIBOR plus 0.11% per annum. Purchase Price: $996.50 per $1,000 Note Offering Price: $1,000 per $1,000 Note Interest Payment Dates: Quarterly; March 1, June 1, September 1, and the related security agreement and pledge agreementDecember 1 of each year, as disclosed in the Registration Statementcommencing June 1, the Disclosure Package and the Final Prospectus; none of the outstanding shares of capital stock of any domestic Significant Subsidiary was issued in violation of the preemptive or similar rights of any security holder of such domestic Significant Subsidiary.
2007 (vi) To the best of our knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments (collectively, the “Company Agreements”) required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits subject to the Registration Statement, other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto in the Prospectus are correct in all material respects as to legal mattersmodified following business day convention).
(vii) We are not aware of any authorization, approval, consent or order of any agency, governmental authority or court (other than under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the rules and regulations of the New York Stock Exchange, or as may be required under the securities or blue sky laws of the various states or foreign jurisdictions as to which we are not required to, and does not, express an opinion), that is required for the due authorization, issuance, sale or delivery of the Securities.
(viii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(ix) The Securities have been duly and validly authorized, and upon issuance and delivery of the Securities in accordance with the Underwriting Agreement, the Securities will be validly issued and will be fully paid and non-assessable and no holder of such Securities is or will be subject to personal liability by reason of being such a holder.
(x) The Securities conform in all material respects as to legal matters to the description thereof in the Registration Statement and the Prospectus.
(xi) The issuance of the Securities is not subject to preemptive or other similar rights of any security holder of the Company under applicable law, the Certificate of Incorporation or By-Laws of the Company, or, to our knowledge, any contract or agreement of the Company.
(xii) The statements made in the Prospectus under the caption “Description of Capital Stock – Common Stock,” to the extent they constitute matters of law or legal conclusions, have been reviewed by us and fairly present the information disclosed therein in all material respects.
(xiii) To the best of our knowledge, there are no statutes or regulations that are required to be described in the Prospectus that are not described as required.
(xiv) The Registration Statement, including any Rule 462(b) Registration Statement, has been declared effective under the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(xv) The Registration Statement (including the Rule 430A Information and any Rule 462(b) Registration Statement, as applicable) and the Prospectus, and each amendment or supplement thereto (except for the financial statements, financial schedules and other financial data included therein or omitted therefrom, as to which we are not required to, and do not, express an opinion), as of their respective effective or issue dates, complied as to form in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations.
(xvi) omitted.
(xvii) The form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Certificate of Incorporation and By-laws of the Company and the requirements of the New York Stock Exchange.
(xviii) To the best of our knowledge, except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any subsidiary is a party, or to which the property of the Company or any subsid
Appears in 1 contract
Arm’s Length Transaction. The Company acknowledges and agrees that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, neither the Representatives nor any other Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between the Company and the several Underwriters. Very truly yours, HECLA MINING COMPANY By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Title: Senior Vice President The foregoing Agreement is hereby confirmed and accepted as of the date first above written. ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED By: /s/ ▇.▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Authorized Signatory SCOTIA CAPITAL (USA) SECURITIES INC. By: /s/ A. ▇▇▇▇▇▇ ▇▇▇▇ A. ▇▇▇▇▇▇ ▇▇▇▇ Authorized Signatory For themselves and the other several Underwriters named in Schedule I. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 12,400,000 875,000 ▇.▇. ▇▇▇▇▇▇ Securities Inc. 612,500 CIBC World Markets Corp. 52,500 BMO Capital Markets Corp. 52,500 Macquarie Securities (USA) Inc. 52,500 RBC Capital Markets Corporation 52,500 Scotia Capital (USA) Inc. 7,750,000 BMO Capital Markets Corp. 5,425,000 RBC Capital Markets Corporation 5,425,000 A first Issuer Free Writing Prospectus, dated September 3, 2008 A second Issuer Free Writing Prospectus, dated September 3, 2008 Price per share to the public: $5.00 Offering Size: 31,000,000 shares Over-allotment Option: 4,000,000 shares, if the Underwriters exercise their option to purchase additional shares in full Closing Date: September 12, 2008 September , 2008 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ As Representatives of the several Underwriters Ladies and Gentlemen: This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), between Hecla Mining Company, a Delaware corporation (the “Company”), and you as Representatives of a group of Underwriters named therein, relating to an underwritten public offering of shares of common stock, par value $0.25 per share, of the Company. In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned not including the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period beginning on the date hereof and continuing for 90 days after the date of the Underwriting Agreement (the “Lock-Up Period”), other than (i) capital stock disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc.; provided that the donee agrees in writing to be bound by the terms of this letter, (ii) capital stock that (when aggregated with all other shares of capital stock disposed of by executive officers and directors of the Company during such period) does not exceed 75,000 shares of capital stock, (iii) capital stock contributed by the Company to its 401(k), retirement, and employee benefit plans in the ordinary course of business and reallocation of funds within such accounts by the participants in or trustees or administrators of such plans, and (iv) capital stock disposed of under the Rule 10b5-1 trading plans or programs in existence of the date hereof. If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated. Yours very truly, [SIGNATURE] [NAME AND ADDRESS] Hecla Limited Hecla Alaska LLC ▇▇▇▇▇ Trading, Inc. Hecla Admiralty Company The selling restrictions are stated under the caption “Underwriting” in the Final Prospectus. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as representatives of the several Underwriters Ladies and Gentlemen: We have acted as special counsel to Hecla Mining Company, a Delaware corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-3ASR (No. 333-145919) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”), including the information deemed to be a part of any such registration statement at the time of effectiveness pursuant to Rule 430A under the 1933 Act (the “Registration Statement”), and the prospectus dated September 7, 2007, together with the preliminary prospectus supplement dated September 2, 2008 (together with the Issuer Free Writing Prospectuses identified on Schedule II of the Underwriting Agreement and the pricing press release filed on Form 8-K on [date], the “Disclosure Package”) and the final prospectus supplement dated September 8, 2008 forming part of the Registration Statement (together with the Disclosure Package, the “Prospectus”), covering (i) the sale by the Company of shares of common stock, par value $0.25 per share (the “Common Stock”), of the Company and the purchase by each of the Underwriters named in Schedule I to the Underwriting Agreement (as defined below) (collectively, the “Underwriters”) of the respective numbers of shares of Common Stock set forth in Schedule I to the Underwriting Agreement and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) of the Underwriting Agreement to purchase up to 4,000,000 additional shares of Common Stock to cover over-allotments, if any, pursuant to the Underwriting Agreement dated September 8, 2008 (the “Underwriting Agreement”) among the Company and you, as representatives of the Underwriters. This opinion is furnished to you pursuant to Section 6(b) of the Underwriting Agreement. Capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to such terms in the Underwriting Agreement. In this connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of: (1) the Underwriting Agreement; (2) the Registration Statement; (3) the Prospectus; (4) the Company Agreements (as defined below); (5) resolutions adopted by the Board of Directors of the Company and the Executive Committee of the Board of Directors of the Company; (6) a specimen certificate evidencing the Securities; (7) the Certificate of Incorporation and By-laws of the Company; (8) a certificate of the Secretary of the State of Delaware as to the existence of the Company; and (9) such corporate and other records, certificates, documents and other papers as we deemed it necessary to examine for the purpose of this opinion. Based on the foregoing, in reliance upon the assumptions set forth herein and subject to the qualifications herein contained, we are of the opinion that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in each domestic jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to the Underwriting Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Disclosure Package and the Final Prospectus or pursuant to the exercise of convertible securities or options referred to in the Disclosure Package or the Final Prospectus); the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company.
(v) Each domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; to the best of our knowledge all of the issued and outstanding capital stock of each domestic Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the best of our knowledge, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except as provided in that certain Amended and Restated Credit Agreement dated as of April 16, 2008 by and among the Company, The Bank of Nova Scotia, as administrative agent for the lenders, and the various financial institutions and other persons from time to time parties thereto and the related security agreement and pledge agreement, as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; none of the outstanding shares of capital stock of any domestic Significant Subsidiary was issued in violation of the preemptive or similar rights of any security holder of such domestic Significant Subsidiary.
(vi) To the best of our knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments (collectively, the “Company Agreements”) required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement, other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto in the Prospectus are correct in all material respects as to legal matters.
(vii) We are not aware of any authorization, approval, consent or order of any agency, governmental authority or court (other than under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the rules and regulations of the New York Stock Exchange, or as may be required under the securities or blue sky laws of the various states or foreign jurisdictions as to which we are not required to, and does not, express an opinion), that is required for the due authorization, issuance, sale or delivery of the Securities.
(viii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(ix) The Securities have been duly and validly authorized, and upon issuance and delivery of the Securities in accordance with the Underwriting Agreement, the Securities will be validly issued and will be fully paid and non-assessable and no holder of such Securities is or will be subject to personal liability by reason of being such a holder.
(x) The Securities conform in all material respects as to legal matters to the description thereof in the Registration Statement and the Prospectus.
(xi) The issuance of the Securities is not subject to preemptive or other similar rights of any security holder of the Company under applicable law, the Certificate of Incorporation or By-Laws of the Company, or, to our knowledge, any contract or agreement of the Company.
(xii) The statements made in the Prospectus under the caption “Description of Capital Stock – Common Stock,” to the extent they constitute matters of law or legal conclusions, have been reviewed by us and fairly present the information disclosed therein in all material respects.
(xiii) To the best of our knowledge, there are no statutes or regulations that are required to be described in the Prospectus that are not described as required.
(xiv) The Registration Statement, including any Rule 462(b) Registration Statement, has been declared effective under the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(xv) The Registration Statement (including the Rule 430A Information and any Rule 462(b) Registration Statement, as applicable) and the Prospectus, and each amendment or supplement thereto (except for the financial statements, financial schedules and other financial data included therein or omitted therefrom, as to which we are not required to, and do not, express an opinion), as of their respective effective or issue dates, complied as to form in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations.
(xvi) omitted.
(xvii) The form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Certificate of Incorporation and By-laws of the Company and the requirements of the New York Stock Exchange.
(xviii) To the best of our knowledge, except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any subsidiary is a party, or to which the property of the Company or any subsid52,500 Total 1,750,000
Appears in 1 contract
Arm’s Length Transaction. The Company company acknowledges and agrees that each of the Underwriters are is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an any agent of, the Company or any other person. Additionally, neither the Representatives nor any other no Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between among the Company and the several Underwriters. Very truly yours, HECLA MINING HEWLETT-PACKARD COMPANY By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Senior Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. By: /s/ ▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇▇ Title: Managing Director Head of Debt Capital Markets CITIGROUP GLOBAL MARKETS INC. By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Title: Managing Director HSBC SECURITIES (USA) INC. By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: Senior Vice President The foregoing Agreement is hereby confirmed and accepted as of the date first above written. ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Authorized Signatory SCOTIA CAPITAL (USA) INC. ByTitle: /s/ A. ▇▇▇▇▇▇ ▇▇▇▇ A. ▇▇▇▇▇▇ ▇▇▇▇ Authorized Signatory Managing Director For themselves and the other several Underwriters named in Schedule I. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 12,400,000 Scotia Capital (USA) Inc. 7,750,000 BMO Capital Markets Corp. 5,425,000 RBC Capital Markets Corporation 5,425,000 A first Issuer Free Writing Prospectus, dated September 3, 2008 A second Issuer Free Writing Prospectus, dated September 3, 2008 Price per share to the public: $5.00 Offering Size: 31,000,000 shares Over-allotment Option: 4,000,000 shares, if the Underwriters exercise their option to purchase additional shares in full Closing Date: September 12, 2008 September , 2008 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ As Representatives of the several Underwriters Ladies and Gentlemen: This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), between Hecla Mining Company, a Delaware corporation (the “Company”), and you as Representatives of a group of Underwriters named therein, relating to an underwritten public offering of shares of common stock, par value $0.25 per share, of the Company. In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned not including the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period beginning on the date hereof and continuing for 90 days after the date of the Underwriting Agreement (the “Lock-Up Period”), other than (i) capital stock disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc.; provided that the donee agrees in writing to be bound by the terms of this letter, (ii) capital stock that (when aggregated with all other shares of capital stock disposed of by executive officers and directors of the Company during such period) does not exceed 75,000 shares of capital stock, (iii) capital stock contributed by the Company to its 401(k), retirement, and employee benefit plans in the ordinary course of business and reallocation of funds within such accounts by the participants in or trustees or administrators of such plans, and (iv) capital stock disposed of under the Rule 10b5-1 trading plans or programs in existence of the date hereof. If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated. Yours very truly, [SIGNATURE] [NAME AND ADDRESS] Hecla Limited Hecla Alaska LLC ▇▇▇▇▇ Trading, Inc. Hecla Admiralty Company The selling restrictions are stated under the caption “Underwriting” in the Final Prospectus. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as representatives of the several Underwriters Ladies and Gentlemen: We have acted as special counsel to Hecla Mining Company, a Delaware corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-3ASR (No. 333-145919) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”), including the information deemed to be a part of any such registration statement at the time of effectiveness pursuant to Rule 430A under the 1933 Act (the “Registration Statement”), and the prospectus dated September 7, 2007, together with the preliminary prospectus supplement dated September 2, 2008 (together with the Issuer Free Writing Prospectuses identified on Schedule II of the Underwriting Agreement and the pricing press release filed on Form 8-K on [date], the “Disclosure Package”) and the final prospectus supplement dated September 8, 2008 forming part of the Registration Statement (together with the Disclosure Package, the “Prospectus”), covering (i) the sale by the Company of shares of common stock, par value $0.25 per share (the “Common Stock”), of the Company and the purchase by each of the Underwriters named in Schedule I to the Underwriting Agreement (as defined below) (collectively, the “Underwriters”) of the respective numbers of shares of Common Stock set forth in Schedule I to the Underwriting Agreement and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) of the Underwriting Agreement to purchase up to 4,000,000 additional shares of Common Stock to cover over-allotmentsseveralUnderwriters, if any, pursuant named in Schedule II to the Underwriting Agreement dated September 8, 2008 (the “Underwriting Agreement”) among the Company and you, as representatives of the Underwriters. This opinion is furnished to you pursuant to Section 6(b) of the Underwriting Agreement. Capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to such terms in the Underwriting Agreement. In this connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of: (1) the Underwriting Agreement; (2) the Registration Statement; (3) the Prospectus; (4) the Company Agreements (as defined below); (5) resolutions adopted by the Board of Directors of the Company and the Executive Committee of the Board of Directors of the Company; (6) a specimen certificate evidencing the Securities; (7) the Certificate of Incorporation and By-laws of the Company; (8) a certificate of the Secretary of the State of Delaware as to the existence of the Company; and (9) such corporate and other records, certificates, documents and other papers as we deemed it necessary to examine for the purpose of this opinion. Based on the foregoing, in reliance upon the assumptions set forth herein and subject to the qualifications herein contained, we are of the opinion that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under the Underwriting foregoing Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in each domestic jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to the Underwriting Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Disclosure Package and the Final Prospectus or pursuant to the exercise of convertible securities or options referred to in the Disclosure Package or the Final Prospectus); the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company.
(v) Each domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; to the best of our knowledge all of the issued and outstanding capital stock of each domestic Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the best of our knowledge, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except as provided in that certain Amended and Restated Credit Agreement dated as of April 16, 2008 by and among the Company, The Bank of Nova Scotia, as administrative agent for the lenders, and the various financial institutions and other persons from time to time parties thereto and the related security agreement and pledge agreement, as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; none of the outstanding shares of capital stock of any domestic Significant Subsidiary was issued in violation of the preemptive or similar rights of any security holder of such domestic Significant Subsidiary.
(vi) To the best of our knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments (collectively, the “Company Agreements”) required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement, other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto in the Prospectus are correct in all material respects as to legal matters.
(vii) We are not aware of any authorization, approval, consent or order of any agency, governmental authority or court (other than under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the rules and regulations of the New York Stock Exchange, or as may be required under the securities or blue sky laws of the various states or foreign jurisdictions as to which we are not required to, and does not, express an opinion), that is required for the due authorization, issuance, sale or delivery of the Securities.
(viii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(ix) The Securities have been duly and validly authorized, and upon issuance and delivery of the Securities in accordance with the Underwriting Agreement, the Securities will be validly issued and will be fully paid and non-assessable and no holder of such Securities is or will be subject to personal liability by reason of being such a holder.
(x) The Securities conform in all material respects as to legal matters to the description thereof in the Registration Statement and the Prospectus.
(xi) The issuance of the Securities is not subject to preemptive or other similar rights of any security holder of the Company under applicable law, the Certificate of Incorporation or By-Laws of the Company, or, to our knowledge, any contract or agreement of the Company.
(xii) The statements made in the Prospectus under the caption “Description of Capital Stock – Common Stock,” to the extent they constitute matters of law or legal conclusions, have been reviewed by us and fairly present the information disclosed therein in all material respects.
(xiii) To the best of our knowledge, there are no statutes or regulations that are required to be described in the Prospectus that are not described as required.
(xiv) The Registration Statement, including any Rule 462(b) Registration Statement, has been declared effective under the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(xv) The Registration Statement (including the Rule 430A Information and any Rule 462(b) Registration Statement, as applicable) and the Prospectus, and each amendment or supplement thereto (except for the financial statements, financial schedules and other financial data included therein or omitted therefrom, as to which we are not required to, and do not, express an opinion), as of their respective effective or issue dates, complied as to form in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations.
(xvi) omitted.
(xvii) The form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Certificate of Incorporation and By-laws of the Company and the requirements of the New York Stock Exchange.
(xviii) To the best of our knowledge, except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any subsidiary is a party, or to which the property of the Company or any subsid
Appears in 1 contract
Arm’s Length Transaction. The Company company acknowledges and agrees that each of the Underwriters are is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an any agent of, the Company or any other person. Additionally, neither the Representatives nor any other no Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between among the Company and the several Underwriters. Very truly yours, HECLA MINING HEWLETT-PACKARD COMPANY By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Senior Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. By: /s/ ▇▇▇▇▇▇▇, Sachs & Co. (▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.) ▇.▇. ▇▇▇▇▇▇ SECURITIES LLC By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Title: Senior Vice President The foregoing Agreement is hereby confirmed and accepted as of the date first above written. ▇▇▇▇▇▇▇ LYNCH, PIERCE, Title: Executive Director ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ & CO. LLC By: /s/ ▇▇▇▇ ▇▇▇▇Seo Name: ▇▇▇▇ Authorized Signatory SCOTIA CAPITAL (USA) INC. BySeo Title: /s/ A. ▇▇▇▇▇▇ ▇▇▇▇ A. ▇▇▇▇▇▇ ▇▇▇▇ Authorized Signatory Vice President For themselves and the other several Underwriters named in Schedule I. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 12,400,000 Scotia Capital (USA) Inc. 7,750,000 BMO Capital Markets Corp. 5,425,000 RBC Capital Markets Corporation 5,425,000 A first Issuer Free Writing Prospectus, dated September 3, 2008 A second Issuer Free Writing Prospectus, dated September 3, 2008 Price per share to the public: $5.00 Offering Size: 31,000,000 shares Over-allotment Option: 4,000,000 shares, if the Underwriters exercise their option to purchase additional shares in full Closing Date: September 12, 2008 September , 2008 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ As Representatives of the several Underwriters Ladies and Gentlemen: This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), between Hecla Mining Company, a Delaware corporation (the “Company”), and you as Representatives of a group of Underwriters named therein, relating to an underwritten public offering of shares of common stock, par value $0.25 per share, of the Company. In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned not including the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period beginning on the date hereof and continuing for 90 days after the date of the Underwriting Agreement (the “Lock-Up Period”), other than (i) capital stock disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc.; provided that the donee agrees in writing to be bound by the terms of this letter, (ii) capital stock that (when aggregated with all other shares of capital stock disposed of by executive officers and directors of the Company during such period) does not exceed 75,000 shares of capital stock, (iii) capital stock contributed by the Company to its 401(k), retirement, and employee benefit plans in the ordinary course of business and reallocation of funds within such accounts by the participants in or trustees or administrators of such plans, and (iv) capital stock disposed of under the Rule 10b5-1 trading plans or programs in existence of the date hereof. If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated. Yours very truly, [SIGNATURE] [NAME AND ADDRESS] Hecla Limited Hecla Alaska LLC ▇▇▇▇▇ Trading, Inc. Hecla Admiralty Company The selling restrictions are stated under the caption “Underwriting” in the Final Prospectus. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as representatives of the several Underwriters Ladies and Gentlemen: We have acted as special counsel to Hecla Mining Company, a Delaware corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-3ASR (No. 333-145919) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”), including the information deemed to be a part of any such registration statement at the time of effectiveness pursuant to Rule 430A under the 1933 Act (the “Registration Statement”), and the prospectus dated September 7, 2007, together with the preliminary prospectus supplement dated September 2, 2008 (together with the Issuer Free Writing Prospectuses identified on Schedule II of the Underwriting Agreement and the pricing press release filed on Form 8-K on [date], the “Disclosure Package”) and the final prospectus supplement dated September 8, 2008 forming part of the Registration Statement (together with the Disclosure Package, the “Prospectus”), covering (i) the sale by the Company of shares of common stock, par value $0.25 per share (the “Common Stock”), of the Company and the purchase by each of the Underwriters named in Schedule I to the Underwriting Agreement (as defined below) (collectively, the “Underwriters”) of the respective numbers of shares of Common Stock set forth in Schedule I to the Underwriting Agreement and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) of the Underwriting Agreement to purchase up to 4,000,000 additional shares of Common Stock to cover over-allotments, if any, pursuant named in Schedule II to the Underwriting Agreement dated September 8, 2008 (the “Underwriting Agreement”) among the Company and you, as representatives of the Underwriters. This opinion is furnished to you pursuant to Section 6(b) of the Underwriting Agreement. Capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to such terms in the Underwriting Agreement. In this connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of: (1) the Underwriting Agreement; (2) the Registration Statement; (3) the Prospectus; (4) the Company Agreements (as defined below); (5) resolutions adopted by the Board of Directors of the Company and the Executive Committee of the Board of Directors of the Company; (6) a specimen certificate evidencing the Securities; (7) the Certificate of Incorporation and By-laws of the Company; (8) a certificate of the Secretary of the State of Delaware as to the existence of the Company; and (9) such corporate and other records, certificates, documents and other papers as we deemed it necessary to examine for the purpose of this opinion. Based on the foregoing, in reliance upon the assumptions set forth herein and subject to the qualifications herein contained, we are of the opinion that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under the Underwriting foregoing Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in each domestic jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to the Underwriting Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Disclosure Package and the Final Prospectus or pursuant to the exercise of convertible securities or options referred to in the Disclosure Package or the Final Prospectus); the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company.
(v) Each domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; to the best of our knowledge all of the issued and outstanding capital stock of each domestic Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the best of our knowledge, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except as provided in that certain Amended and Restated Credit Agreement dated as of April 16, 2008 by and among the Company, The Bank of Nova Scotia, as administrative agent for the lenders, and the various financial institutions and other persons from time to time parties thereto and the related security agreement and pledge agreement, as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; none of the outstanding shares of capital stock of any domestic Significant Subsidiary was issued in violation of the preemptive or similar rights of any security holder of such domestic Significant Subsidiary.
(vi) To the best of our knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments (collectively, the “Company Agreements”) required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement, other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto in the Prospectus are correct in all material respects as to legal matters.
(vii) We are not aware of any authorization, approval, consent or order of any agency, governmental authority or court (other than under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the rules and regulations of the New York Stock Exchange, or as may be required under the securities or blue sky laws of the various states or foreign jurisdictions as to which we are not required to, and does not, express an opinion), that is required for the due authorization, issuance, sale or delivery of the Securities.
(viii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(ix) The Securities have been duly and validly authorized, and upon issuance and delivery of the Securities in accordance with the Underwriting Agreement, the Securities will be validly issued and will be fully paid and non-assessable and no holder of such Securities is or will be subject to personal liability by reason of being such a holder.
(x) The Securities conform in all material respects as to legal matters to the description thereof in the Registration Statement and the Prospectus.
(xi) The issuance of the Securities is not subject to preemptive or other similar rights of any security holder of the Company under applicable law, the Certificate of Incorporation or By-Laws of the Company, or, to our knowledge, any contract or agreement of the Company.
(xii) The statements made in the Prospectus under the caption “Description of Capital Stock – Common Stock,” to the extent they constitute matters of law or legal conclusions, have been reviewed by us and fairly present the information disclosed therein in all material respects.
(xiii) To the best of our knowledge, there are no statutes or regulations that are required to be described in the Prospectus that are not described as required.
(xiv) The Registration Statement, including any Rule 462(b) Registration Statement, has been declared effective under the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(xv) The Registration Statement (including the Rule 430A Information and any Rule 462(b) Registration Statement, as applicable) and the Prospectus, and each amendment or supplement thereto (except for the financial statements, financial schedules and other financial data included therein or omitted therefrom, as to which we are not required to, and do not, express an opinion), as of their respective effective or issue dates, complied as to form in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations.
(xvi) omitted.
(xvii) The form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Certificate of Incorporation and By-laws of the Company and the requirements of the New York Stock Exchange.
(xviii) To the best of our knowledge, except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any subsidiary is a party, or to which the property of the Company or any subsid
Appears in 1 contract
Arm’s Length Transaction. The Company company acknowledges and agrees that each of the Underwriters are is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an any agent of, the Company or any other person. Additionally, neither the Representatives nor any other no Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between among the Company and the several Underwriters. Very truly yours, HECLA MINING HEWLETT-PACKARD COMPANY By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Title: Vice President HSBC SECURITIES (USA) INC. By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: Vice President ▇.▇. ▇▇▇▇▇▇ SECURITIES INC. By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Title: Senior Vice President The foregoing Agreement is hereby confirmed and accepted as of the date first above written. ▇▇▇▇▇▇▇ LYNCH, PIERCE, Title: Vice President ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED BROTHERS INC. By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Managing Director For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. Underwriting Agreement: Dated February 25, 2008 Registration Statement No.: 333-134327 Representatives: Banc of America Securities LLC ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ Authorized Signatory SCOTIA CAPITAL ▇▇▇▇, ▇▇ ▇▇▇▇▇ HSBC Securities (USA) INC. By: /s/ A. Inc. HSBC Tower 3, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ A. ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇ Securities Inc. ▇▇▇ ▇▇▇▇ ▇▇▇▇ Authorized Signatory For themselves and the other several Underwriters named in Schedule I. ▇▇▇▇▇▇▇ Lynch., Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 12,400,000 Scotia Capital (USA) Inc. 7,750,000 BMO Capital Markets Corp. 5,425,000 RBC Capital Markets Corporation 5,425,000 A first Issuer Free Writing Prospectus, dated September 3, 2008 A second Issuer Free Writing Prospectus, dated September 3, 2008 Price per share to the public: $5.00 Offering Size: 31,000,000 shares Over-allotment Option: 4,000,000 shares, if the Underwriters exercise their option to purchase additional shares in full Closing Date: September 12, 2008 September , 2008 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ As Representatives of the several Underwriters Ladies and Gentlemen: This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), between Hecla Mining Company, a Delaware corporation (the “Company”), and you as Representatives of a group of Underwriters named therein, relating to an underwritten public offering of shares of common stock, par value $0.25 per share, of the Company. In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned not including the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period beginning on the date hereof and continuing for 90 days after the date of the Underwriting Agreement (the “Lock-Up Period”), other than (i) capital stock disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc.; provided that the donee agrees in writing to be bound by the terms of this letter, (ii) capital stock that (when aggregated with all other shares of capital stock disposed of by executive officers and directors of the Company during such period) does not exceed 75,000 shares of capital stock, (iii) capital stock contributed by the Company to its 401(k), retirement, and employee benefit plans in the ordinary course of business and reallocation of funds within such accounts by the participants in or trustees or administrators of such plans, and (iv) capital stock disposed of under the Rule 10b5-1 trading plans or programs in existence of the date hereof. If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated. Yours very truly, [SIGNATURE] [NAME AND ADDRESS] Hecla Limited Hecla Alaska LLC ▇▇▇▇▇ Trading, Brothers Inc. Hecla Admiralty Company The selling restrictions are stated under the caption “Underwriting” in the Final Prospectus. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: Debt Capital Markets - Telecom, Media Technology Group Co-Managers: BNP Paribas Securities Corp. Deutsche Bank Securities Inc. Greenwich Capital Markets, Inc. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as representatives & Co. Incorporated SG Americas Securities, LLC Title of the several Underwriters Ladies and GentlemenSecurities: We have acted as special counsel to Hecla Mining CompanyFloating Rate Global Notes due September 3, a Delaware corporation (the “Company”), in connection 2009 Ranking: Senior unsecured obligations ranking equally with the Company’s Registration Statement on Form S-3ASR (No. 333-145919) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act all other senior unsecured indebtedness of 1933, as amended (the “1933 Act”), including the information deemed to be a part of any such registration statement at the time of effectiveness pursuant to Rule 430A under the 1933 Act (the “Registration Statement”), and the prospectus dated September 7, 2007, together with the preliminary prospectus supplement dated September 2, 2008 (together with the Issuer Free Writing Prospectuses identified on Schedule II of the Underwriting Agreement and the pricing press release filed on Form 8-K on [date], the “Disclosure Package”) and the final prospectus supplement dated September 8, 2008 forming part of the Registration Statement (together with the Disclosure Package, the “Prospectus”), covering (i) the sale by the Company of shares of common stock, par value $0.25 per share (the “Common Stock”), of the Company and the purchase by each of the Underwriters named in Schedule I to the Underwriting Agreement (as defined below) (collectively, the “Underwriters”) of the respective numbers of shares of Common Stock set forth in Schedule I to the Underwriting Agreement and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) of the Underwriting Agreement to purchase up to 4,000,000 additional shares of Common Stock to cover over-allotments, if any, pursuant to the Underwriting Agreement dated September 8, 2008 (the “Underwriting Agreement”) among the Company and you, as representatives of the Underwriters. This opinion is furnished to you pursuant to Section 6(b) of the Underwriting Agreement. Capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to such terms in the Underwriting Agreement. In this connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of: (1) the Underwriting Agreement; (2) the Registration Statement; (3) the Prospectus; (4) the Company Agreements (as defined below); (5) resolutions adopted by the Board of Directors of the Company and the Executive Committee of the Board of Directors of the Company; (6) a specimen certificate evidencing the Securities; (7) the Certificate of Incorporation and By-laws of the Company; (8) a certificate of the Secretary of the State of Delaware as to the existence of the Company; and (9) such corporate and other records, certificates, documents and other papers as we deemed it necessary to examine for the purpose of this opinion. Based on the foregoing, in reliance upon the assumptions set forth herein and subject to the qualifications herein contained, we are of the opinion that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in each domestic jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to the Underwriting Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Disclosure Package and the Final Prospectus or pursuant to the exercise of convertible securities or options referred to in the Disclosure Package or the Final Prospectus); the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company.
(v) Each domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; to the best of our knowledge all of the issued and outstanding capital stock of each domestic Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the best of our knowledge, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except as provided in that certain Amended and Restated Credit Agreement dated as of April 16, 2008 by and among the Company, The Bank of Nova Scotia, as administrative agent for the lenders, and the various financial institutions and other persons HP from time to time parties thereto and the related security agreement and pledge agreement, as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; none of the outstanding shares of capital stock of any domestic Significant Subsidiary was issued in violation of the preemptive or similar rights of any security holder of such domestic Significant Subsidiary.
(vi) To the best of our knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments (collectively, the “Company Agreements”) required Principal Amount: $750,000,000 Interest Rate: Floating rate equal to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement, other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto in the Prospectus are correct in all material respects as to legal matters.
(vii) We are not aware of any authorization, approval, consent or order of any agency, governmental authority or court (other than under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the rules and regulations of the New York Stock Exchange, or as may be required under the securities or blue sky laws of the various states or foreign jurisdictions as to which we are not required to, and does not, express an opinion), that is required for the due authorization, issuance, sale or delivery of the Securities.
(viii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(ix) The Securities have been duly and validly authorized, and upon issuance and delivery of the Securities in accordance with the Underwriting Agreement, the Securities will be validly issued and will be fully paid and nonthree-assessable and no holder of such Securities is or will be subject to personal liability by reason of being such a holder.
(x) The Securities conform in all material respects as to legal matters to the description thereof in the Registration Statement and the Prospectus.
(xi) The issuance of the Securities is not subject to preemptive or other similar rights of any security holder of the Company under applicable law, the Certificate of Incorporation or By-Laws of the Company, or, to our knowledge, any contract or agreement of the Company.
(xii) The statements made in the Prospectus under the caption “Description of Capital Stock – Common Stock,” to the extent they constitute matters of law or legal conclusions, have been reviewed by us and fairly present the information disclosed therein in all material respects.
(xiii) To the best of our knowledge, there are no statutes or regulations that are required to be described in the Prospectus that are not described as required.
(xiv) The Registration Statement, including any Rule 462(b) Registration Statement, has been declared effective under the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(xv) The Registration Statement (including the Rule 430A Information and any Rule 462(b) Registration Statement, as applicable) and the Prospectus, and each amendment or supplement thereto (except for the financial statements, financial schedules and other financial data included therein or omitted therefrom, as to which we are not required to, and do not, express an opinion), as of their respective effective or issue dates, complied as to form in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations.
(xvi) omitted.
(xvii) The form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Certificate of Incorporation and By-laws of the Company and the requirements of the New York Stock Exchange.
(xviii) To the best of our knowledge, except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any subsidiary is a party, or to which the property of the Company or any subsidmonth USD LIBOR plus 0.40% per annum. Purchase Price: 99.90% Offering Price: 100.00%
Appears in 1 contract
Arm’s Length Transaction. The Company acknowledges and agrees that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, neither the Representatives nor any other Underwriter is no Underwriters are advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between the Company and the several Underwriters. Very truly yours, HECLA MINING COMPANY US GOLD CORPORATION By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ ING Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Ing Title: Senior Vice President CFO The foregoing Agreement is hereby confirmed and accepted as of the date first above written. ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Authorized Signatory SCOTIA CAPITAL (USA) INC. GMP SECURITIES L.P. By: /s/ A. ▇▇▇▇▇▇ ▇▇▇▇ A. ▇▇▇▇▇▇ ▇▇▇▇ Authorized Signatory For themselves and the other several Underwriters named in Schedule I. ▇SCOTIA CAPITAL INC. By: /s/ ▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & Authorized Signatory ▇▇▇▇▇ Incorporated 12,400,000 Scotia Capital (USA) Inc. 7,750,000 BMO Capital Markets Corp. 5,425,000 RBC Capital Markets Corporation 5,425,000 A first Issuer Free Writing Prospectus, dated September 3, 2008 A second Issuer Free Writing Prospectus, dated September 3, 2008 Price per share to the public: $5.00 Offering Size: 31,000,000 shares Over-allotment Option: 4,000,000 shares, if the Underwriters exercise their option to purchase additional shares in full Closing Date: September 12, 2008 September , 2008 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇ AND CO. By: /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ Authorized Signatory ▇▇▇▇, ▇▇▇ ▇▇▇▇ & Company 6,000,000 GMP Securities L.P. 6,000,000 Scotia Capital Inc. 1,500,000 ▇▇▇▇▇ As Representatives of the several Underwriters Ladies and Gentlemen: This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), between Hecla Mining Company, a Delaware corporation (the “Company”), and you as Representatives of a group of Underwriters named therein, relating to an underwritten public offering of shares of common stock, par value $0.25 per share, of the Company. In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned not including the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period beginning on the date hereof and continuing for 90 days after the date of the Underwriting Agreement (the “Lock-Up Period”), other than (i) capital stock disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc.; provided that the donee agrees in writing to be bound by the terms of this letter, (ii) capital stock that (when aggregated with all other shares of capital stock disposed of by executive officers and directors of the Company during such period) does not exceed 75,000 shares of capital stock, (iii) capital stock contributed by the Company to its 401(k), retirement, and employee benefit plans in the ordinary course of business and reallocation of funds within such accounts by the participants in or trustees or administrators of such plans, and (iv) capital stock disposed of under the Rule 10b5-1 trading plans or programs in existence of the date hereof. If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated. Yours very truly, [SIGNATURE] [NAME AND ADDRESS] Hecla Limited Hecla Alaska LLC ▇▇▇▇▇ Trading, Inc. Hecla Admiralty Company The selling restrictions are stated under the caption “Underwriting” in the Final Prospectus. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇▇ and Co. 1,500,000 Total 15,000,000 None. Issue Price US$6.50 Aggregate Number of Shares (including Option Shares) 15,000,000 (17,250,000) Expected Closing Date February 24, 2011
(a) The Company agrees that the Underwriters will be permitted to appoint, at their sole expense, other registered dealers or brokers as their agents to assist in the distribution of the Securities. The Underwriters shall, and shall require any such dealer or broker, other than the Underwriters, with which the Underwriters have a contractual relationship in respect of the distribution of the Securities (a “Selling Firm”), to comply with the Canadian Securities Laws and the applicable provisions of the Act in connection with the distribution of the Securities and shall offer the Securities for sale to the public directly and through Selling Firms upon the terms and conditions set out in the Final Prospectus, the Final Canadian MJDS Supplement and this Agreement. The Underwriters shall, and shall require any Selling Firm, to offer for sale to the public and sell the Shares only in those jurisdictions where they may be lawfully offered for sale or sold.
(b) Notwithstanding the foregoing, an Underwriter will not be liable for any breach under this Exhibit A by another Underwriter if the Underwriter first mentioned is not itself also in breach of this Exhibit A.
(c) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as representatives of the several Underwriters Ladies and Gentlemen: We have acted as special counsel to Hecla Mining Company, a Delaware corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-3ASR (No. 333-145919) filed with shall offer the Securities and Exchange Commission for sale to the public only in the U.S.
(d) For the “Commission”) under purposes of this Exhibit A, GMP shall be entitled to assume that the Securities Act of 1933, as amended (the “1933 Act”), including the information deemed to be a part of are qualified for distribution in any such registration statement at the time of effectiveness pursuant to Rule 430A under the 1933 Act (the “Registration Statement”), and the prospectus dated September 7, 2007, together with the preliminary prospectus supplement dated September 2, 2008 (together with the Issuer Free Writing Prospectuses identified on Schedule II of the Underwriting Agreement and the pricing press release filed on Form 8-K on [date], the “Disclosure Package”) and the final prospectus supplement dated September 8, 2008 forming part of the Registration Statement (together with the Disclosure Package, the “Prospectus”), covering (i) the sale by the Company of shares of common stock, par value $0.25 per share (the “Common Stock”), of the Company and the purchase by each of the Underwriters named in Schedule I to the Underwriting Agreement (as defined below) (collectively, the “Underwriters”) of the respective numbers of shares of Common Stock set forth in Schedule I to the Underwriting Agreement and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) of the Underwriting Agreement to purchase up to 4,000,000 additional shares of Common Stock to cover over-allotments, if any, pursuant to the Underwriting Agreement dated September 8, 2008 (the “Underwriting Agreement”) among the Company and you, as representatives of the Underwriters. This opinion is furnished to you pursuant to Section 6(b) of the Underwriting Agreement. Capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to such terms in the Underwriting Agreement. In this connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of: (1) the Underwriting Agreement; (2) the Registration Statement; (3) the Prospectus; (4) the Company Agreements (as defined below); (5) resolutions adopted by the Board of Directors of the Company and the Executive Committee of the Board of Directors of the Company; (6) a specimen certificate evidencing the Securities; (7) the Certificate of Incorporation and By-laws of the Company; (8) a certificate of the Secretary of the State of Delaware as to the existence of the Company; and (9) such corporate and other records, certificates, documents and other papers as we deemed it necessary to examine for the purpose of this opinion. Based on the foregoing, in reliance upon the assumptions set forth herein and subject to the qualifications herein contained, we are of the opinion that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of DelawareCanadian Jurisdiction.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in each domestic jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to the Underwriting Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Disclosure Package and the Final Prospectus or pursuant to the exercise of convertible securities or options referred to in the Disclosure Package or the Final Prospectus); the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company.
(v) Each domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; to the best of our knowledge all of the issued and outstanding capital stock of each domestic Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the best of our knowledge, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except as provided in that certain Amended and Restated Credit Agreement dated as of April 16, 2008 by and among the Company, The Bank of Nova Scotia, as administrative agent for the lenders, and the various financial institutions and other persons from time to time parties thereto and the related security agreement and pledge agreement, as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; none of the outstanding shares of capital stock of any domestic Significant Subsidiary was issued in violation of the preemptive or similar rights of any security holder of such domestic Significant Subsidiary.
(vi) To the best of our knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments (collectively, the “Company Agreements”) required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement, other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto in the Prospectus are correct in all material respects as to legal matters.
(vii) We are not aware of any authorization, approval, consent or order of any agency, governmental authority or court (other than under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the rules and regulations of the New York Stock Exchange, or as may be required under the securities or blue sky laws of the various states or foreign jurisdictions as to which we are not required to, and does not, express an opinion), that is required for the due authorization, issuance, sale or delivery of the Securities.
(viii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(ix) The Securities have been duly and validly authorized, and upon issuance and delivery of the Securities in accordance with the Underwriting Agreement, the Securities will be validly issued and will be fully paid and non-assessable and no holder of such Securities is or will be subject to personal liability by reason of being such a holder.
(x) The Securities conform in all material respects as to legal matters to the description thereof in the Registration Statement and the Prospectus.
(xi) The issuance of the Securities is not subject to preemptive or other similar rights of any security holder of the Company under applicable law, the Certificate of Incorporation or By-Laws of the Company, or, to our knowledge, any contract or agreement of the Company.
(xii) The statements made in the Prospectus under the caption “Description of Capital Stock – Common Stock,” to the extent they constitute matters of law or legal conclusions, have been reviewed by us and fairly present the information disclosed therein in all material respects.
(xiii) To the best of our knowledge, there are no statutes or regulations that are required to be described in the Prospectus that are not described as required.
(xiv) The Registration Statement, including any Rule 462(b) Registration Statement, has been declared effective under the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(xv) The Registration Statement (including the Rule 430A Information and any Rule 462(b) Registration Statement, as applicable) and the Prospectus, and each amendment or supplement thereto (except for the financial statements, financial schedules and other financial data included therein or omitted therefrom, as to which we are not required to, and do not, express an opinion), as of their respective effective or issue dates, complied as to form in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations.
(xvi) omitted.
(xvii) The form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Certificate of Incorporation and By-laws of the Company and the requirements of the New York Stock Exchange.
(xviii) To the best of our knowledge, except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any subsidiary is a party, or to which the property of the Company or any subsid
Appears in 1 contract
Arm’s Length Transaction. The Company company acknowledges and agrees that each of the Underwriters are is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an any agent of, the Company or any other person. Additionally, neither the Representatives nor any other no Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between among the Company and the several Underwriters. Very truly yours, HECLA MINING HEWLETT-PACKARD COMPANY By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Title: Senior Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted as of on the date first above writtenspecified in Schedule I hereto. By: /s/ ▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇▇ Title: Managing Director Head of Capital Markets ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Authorized Signatory SCOTIA CAPITAL (USA) Title: Managing Director RBS SECURITIES, INC. By: /s/ A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ A. Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Authorized Signatory Title: Managing Director ▇▇▇▇▇ FARGO SECURITIES, LLC By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Director For themselves and the other several Underwriters Underwriters, if any, named in Schedule I. II to the foregoing Agreement. Underwriting Agreement: Dated January 9, 2014 Registration Statement No.: 333-181669 Representatives: BNP Paribas Securities Corp. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 12,400,000 Scotia Capital (USA) ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ RBS Securities, Inc. 7,750,000 BMO Capital Markets ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Fargo Securities, LLC ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 5th Floor Charlotte, North Carolina 28202 Joint Bookrunners: BNP Paribas Securities Corp. 5,425,000 RBC Capital Markets Corporation 5,425,000 A first Issuer Free Writing Prospectus, dated September 3, 2008 A second Issuer Free Writing Prospectus, dated September 3, 2008 Price per share to the public: $5.00 Offering Size: 31,000,000 shares Over-allotment Option: 4,000,000 shares, if the Underwriters exercise their option to purchase additional shares in full Closing Date: September 12, 2008 September , 2008 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New YorkRBS Securities, New York 10080 Scotia Inc. ▇▇▇▇▇ Fargo Securities, LLC Co-Managers: ANZ Securities, Inc. Barclays Capital Inc. BNY Mellon Capital markets, LLC Citigroup Global Market Inc. Credit Suisse Securities (USA) LLC Deutsche Bank Securities Inc. One Liberty Plaza HSBC Bank Securities Inc. ▇. ▇. ▇▇▇▇▇▇ Securities LLC ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ As Representatives of the several Underwriters Ladies and Gentlemen: This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), between Hecla Mining Company, a Delaware corporation (the “Company”), and you as Representatives of a group of Underwriters named therein, relating to an underwritten public offering of shares of common stock, par value $0.25 per share, of the Company. In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Co. LLC RBC Capital (USA) Inc.Markets, offerLLC Santander Investment Securities Inc. SG Americas Securities, sellLLC Standard Chartered Bank Title of Securities: Floating Rate Global Notes due January 14, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned not including the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement 2019 Ranking: Senior unsecured obligations ranking equally with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock all other senior unsecured indebtedness of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period beginning on the date hereof and continuing for 90 days after the date of the Underwriting Agreement (the “Lock-Up Period”), other than (i) capital stock disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc.; provided that the donee agrees in writing to be bound by the terms of this letter, (ii) capital stock that (when aggregated with all other shares of capital stock disposed of by executive officers and directors of the Company during such period) does not exceed 75,000 shares of capital stock, (iii) capital stock contributed by the Company to its 401(k), retirement, and employee benefit plans in the ordinary course of business and reallocation of funds within such accounts by the participants in or trustees or administrators of such plans, and (iv) capital stock disposed of under the Rule 10b5-1 trading plans or programs in existence of the date hereof. If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated. Yours very truly, [SIGNATURE] [NAME AND ADDRESS] Hecla Limited Hecla Alaska LLC ▇▇▇▇▇ Trading, Inc. Hecla Admiralty Company The selling restrictions are stated under the caption “Underwriting” in the Final Prospectus. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as representatives of the several Underwriters Ladies and Gentlemen: We have acted as special counsel to Hecla Mining Company, a Delaware corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-3ASR (No. 333-145919) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”), including the information deemed to be a part of any such registration statement at the time of effectiveness pursuant to Rule 430A under the 1933 Act (the “Registration Statement”), and the prospectus dated September 7, 2007, together with the preliminary prospectus supplement dated September 2, 2008 (together with the Issuer Free Writing Prospectuses identified on Schedule II of the Underwriting Agreement and the pricing press release filed on Form 8-K on [date], the “Disclosure Package”) and the final prospectus supplement dated September 8, 2008 forming part of the Registration Statement (together with the Disclosure Package, the “Prospectus”), covering (i) the sale by the Company of shares of common stock, par value $0.25 per share (the “Common Stock”), of the Company and the purchase by each of the Underwriters named in Schedule I to the Underwriting Agreement (as defined below) (collectively, the “Underwriters”) of the respective numbers of shares of Common Stock set forth in Schedule I to the Underwriting Agreement and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) of the Underwriting Agreement to purchase up to 4,000,000 additional shares of Common Stock to cover over-allotments, if any, pursuant to the Underwriting Agreement dated September 8, 2008 (the “Underwriting Agreement”) among the Company and you, as representatives of the Underwriters. This opinion is furnished to you pursuant to Section 6(b) of the Underwriting Agreement. Capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to such terms in the Underwriting Agreement. In this connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of: (1) the Underwriting Agreement; (2) the Registration Statement; (3) the Prospectus; (4) the Company Agreements (as defined below); (5) resolutions adopted by the Board of Directors of the Company and the Executive Committee of the Board of Directors of the Company; (6) a specimen certificate evidencing the Securities; (7) the Certificate of Incorporation and By-laws of the Company; (8) a certificate of the Secretary of the State of Delaware as to the existence of the Company; and (9) such corporate and other records, certificates, documents and other papers as we deemed it necessary to examine for the purpose of this opinion. Based on the foregoing, in reliance upon the assumptions set forth herein and subject to the qualifications herein contained, we are of the opinion that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in each domestic jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to the Underwriting Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Disclosure Package and the Final Prospectus or pursuant to the exercise of convertible securities or options referred to in the Disclosure Package or the Final Prospectus); the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company.
(v) Each domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; to the best of our knowledge all of the issued and outstanding capital stock of each domestic Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the best of our knowledge, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except as provided in that certain Amended and Restated Credit Agreement dated as of April 16, 2008 by and among the Company, The Bank of Nova Scotia, as administrative agent for the lenders, and the various financial institutions and other persons from time to time parties thereto outstanding. Principal Amount: $750,000,000,000 Interest Rate: Floating rate equal to three-month USD LIBOR plus 0.94% per annum. Purchase Price: 99.650% Offering Price: 100% Interest Payment Dates: Quarterly; January 14, April 14, July 14 and the related security agreement and pledge agreementOctober 14 of each year, as disclosed in the Registration Statementcommencing April 14, the Disclosure Package and the Final Prospectus; none of the outstanding shares of capital stock of any domestic Significant Subsidiary was issued in violation of the preemptive or similar rights of any security holder of such domestic Significant Subsidiary.
2014 (vi) To the best of our knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments (collectively, the “Company Agreements”) required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits subject to the Registration Statement, other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto in the Prospectus are correct in all material respects as to legal mattersmodified following business day convention set forth below).
(vii) We are not aware of any authorization, approval, consent or order of any agency, governmental authority or court (other than under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the rules and regulations of the New York Stock Exchange, or as may be required under the securities or blue sky laws of the various states or foreign jurisdictions as to which we are not required to, and does not, express an opinion), that is required for the due authorization, issuance, sale or delivery of the Securities.
(viii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(ix) The Securities have been duly and validly authorized, and upon issuance and delivery of the Securities in accordance with the Underwriting Agreement, the Securities will be validly issued and will be fully paid and non-assessable and no holder of such Securities is or will be subject to personal liability by reason of being such a holder.
(x) The Securities conform in all material respects as to legal matters to the description thereof in the Registration Statement and the Prospectus.
(xi) The issuance of the Securities is not subject to preemptive or other similar rights of any security holder of the Company under applicable law, the Certificate of Incorporation or By-Laws of the Company, or, to our knowledge, any contract or agreement of the Company.
(xii) The statements made in the Prospectus under the caption “Description of Capital Stock – Common Stock,” to the extent they constitute matters of law or legal conclusions, have been reviewed by us and fairly present the information disclosed therein in all material respects.
(xiii) To the best of our knowledge, there are no statutes or regulations that are required to be described in the Prospectus that are not described as required.
(xiv) The Registration Statement, including any Rule 462(b) Registration Statement, has been declared effective under the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(xv) The Registration Statement (including the Rule 430A Information and any Rule 462(b) Registration Statement, as applicable) and the Prospectus, and each amendment or supplement thereto (except for the financial statements, financial schedules and other financial data included therein or omitted therefrom, as to which we are not required to, and do not, express an opinion), as of their respective effective or issue dates, complied as to form in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations.
(xvi) omitted.
(xvii) The form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Certificate of Incorporation and By-laws of the Company and the requirements of the New York Stock Exchange.
(xviii) To the best of our knowledge, except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any subsidiary is a party, or to which the property of the Company or any subsid
Appears in 1 contract
Arm’s Length Transaction. The Company company acknowledges and agrees that each of the Underwriters are is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an any agent of, the Company or any other person. Additionally, neither the Representatives nor any other no Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between among the Company and the several Underwriters. Very truly yours, HECLA MINING HEWLETT-PACKARD COMPANY By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Senior Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. ▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO. By: /s/ ▇▇▇▇▇▇▇, Sachs & Co. (▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.) ▇.▇. ▇▇▇▇▇▇ SECURITIES LLC By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Title: Senior Vice President The foregoing Agreement is hereby confirmed and accepted as of the date first above written. Executive Director ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LYNCH& CO. LLC By: /s/ ▇▇▇▇ Seo Name: ▇▇▇▇ Seo Title: Vice President For themselves and the other several Underwriters, PIERCEif any, named in Schedule II to the foregoing Agreement. Underwriting Agreement: Dated December 6, 2011 Registration Statement No.: 333-159366 Representatives: ▇▇▇▇▇▇▇, Sachs & Co. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇ Securities LLC ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED By: /s/ Co. LLC ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Joint Bookrunners: ▇▇▇▇▇▇▇, Sachs & Co. ▇.▇. ▇▇▇▇▇▇ Authorized Signatory SCOTIA CAPITAL (USA) INC. By: /s/ A. Securities LLC ▇▇▇▇▇▇ ▇▇▇▇ A. ▇▇▇▇▇▇ ▇▇▇▇ Authorized Signatory For themselves and the other several Underwriters named in Schedule I. & Co. LLC Co-Managers: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Credit Suisse Securities (USA) LLC HSBC Securities (USA) Inc. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 12,400,000 Scotia Capital (USA) Mizuho Securities USA Inc. 7,750,000 BMO Capital Markets Corp. 5,425,000 RBC Capital Markets Corporation 5,425,000 A first Issuer Free Writing Prospectus, dated September 3, 2008 A second Issuer Free Writing Prospectus, dated September 3, 2008 Price per share to the public: $5.00 Offering Size: 31,000,000 shares Over-allotment Option: 4,000,000 shares, if the Underwriters exercise their option to purchase additional shares in full Closing Date: September 12, 2008 September , 2008 ▇▇RBS Securities Inc. ▇▇▇▇▇ LynchFargo Securities, PierceLLC Title of Securities: 2.625% Global Notes due December 9, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ As Representatives of the several Underwriters Ladies and Gentlemen2014 Ranking: This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), between Hecla Mining Company, a Delaware corporation (the “Company”), and you as Representatives of a group of Underwriters named therein, relating to an underwritten public offering of shares of common stock, par value $0.25 per share, of the Company. In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned not including the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period beginning on the date hereof and continuing for 90 days after the date of the Underwriting Agreement (the “Lock-Up Period”), other than (i) capital stock disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc.; provided that the donee agrees in writing to be bound by the terms of this letter, (ii) capital stock that (when aggregated Senior unsecured obligations ranking equally with all other shares senior unsecured indebtedness of capital stock disposed of by executive officers and directors of the Company during such period) does not exceed 75,000 shares of capital stock, (iii) capital stock contributed by the Company to its 401(k), retirement, and employee benefit plans in the ordinary course of business and reallocation of funds within such accounts by the participants in or trustees or administrators of such plans, and (iv) capital stock disposed of under the Rule 10b5-1 trading plans or programs in existence of the date hereof. If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated. Yours very truly, [SIGNATURE] [NAME AND ADDRESS] Hecla Limited Hecla Alaska LLC ▇▇▇▇▇ Trading, Inc. Hecla Admiralty Company The selling restrictions are stated under the caption “Underwriting” in the Final Prospectus. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as representatives of the several Underwriters Ladies and Gentlemen: We have acted as special counsel to Hecla Mining Company, a Delaware corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-3ASR (No. 333-145919) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”), including the information deemed to be a part of any such registration statement at the time of effectiveness pursuant to Rule 430A under the 1933 Act (the “Registration Statement”), and the prospectus dated September 7, 2007, together with the preliminary prospectus supplement dated September 2, 2008 (together with the Issuer Free Writing Prospectuses identified on Schedule II of the Underwriting Agreement and the pricing press release filed on Form 8-K on [date], the “Disclosure Package”) and the final prospectus supplement dated September 8, 2008 forming part of the Registration Statement (together with the Disclosure Package, the “Prospectus”), covering (i) the sale by the Company of shares of common stock, par value $0.25 per share (the “Common Stock”), of the Company and the purchase by each of the Underwriters named in Schedule I to the Underwriting Agreement (as defined below) (collectively, the “Underwriters”) of the respective numbers of shares of Common Stock set forth in Schedule I to the Underwriting Agreement and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) of the Underwriting Agreement to purchase up to 4,000,000 additional shares of Common Stock to cover over-allotments, if any, pursuant to the Underwriting Agreement dated September 8, 2008 (the “Underwriting Agreement”) among the Company and you, as representatives of the Underwriters. This opinion is furnished to you pursuant to Section 6(b) of the Underwriting Agreement. Capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to such terms in the Underwriting Agreement. In this connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of: (1) the Underwriting Agreement; (2) the Registration Statement; (3) the Prospectus; (4) the Company Agreements (as defined below); (5) resolutions adopted by the Board of Directors of the Company and the Executive Committee of the Board of Directors of the Company; (6) a specimen certificate evidencing the Securities; (7) the Certificate of Incorporation and By-laws of the Company; (8) a certificate of the Secretary of the State of Delaware as to the existence of the Company; and (9) such corporate and other records, certificates, documents and other papers as we deemed it necessary to examine for the purpose of this opinion. Based on the foregoing, in reliance upon the assumptions set forth herein and subject to the qualifications herein contained, we are of the opinion that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in each domestic jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to the Underwriting Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Disclosure Package and the Final Prospectus or pursuant to the exercise of convertible securities or options referred to in the Disclosure Package or the Final Prospectus); the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company.
(v) Each domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; to the best of our knowledge all of the issued and outstanding capital stock of each domestic Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the best of our knowledge, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except as provided in that certain Amended and Restated Credit Agreement dated as of April 16, 2008 by and among the Company, The Bank of Nova Scotia, as administrative agent for the lenders, and the various financial institutions and other persons HP from time to time parties thereto outstanding Principal Amount: $650,000,000 Interest Rate: 2.625% per annum. Purchase Price: 99.746% Offering Price: 99.946% Interest Payment Dates: Semiannually; June 9 and the related security agreement and pledge agreementDecember 9 of each year, as disclosed in the Registration Statementcommencing June 9, the Disclosure Package and the Final Prospectus; none of the outstanding shares of capital stock of any domestic Significant Subsidiary was issued in violation of the preemptive or similar rights of any security holder of such domestic Significant Subsidiary.
2012 (vi) To the best of our knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments (collectively, the “Company Agreements”) required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits subject to the Registration Statementfollowing business day convention). Method of Calculation: 30/360 Subordination Provisions: None The Company will have the right to redeem the 2.625% Global Notes, other in whole or in part on at least 30 days’ but no more than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto in the Prospectus are correct in all material respects as to legal matters.
(vii) We are not aware of any authorization, approval, consent or order of any agency, governmental authority or court (other than under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the rules and regulations of the New York Stock Exchange, or as may be required under the securities or blue sky laws of the various states or foreign jurisdictions as to which we are not required to, and does not, express an opinion), that is required for the due authorization, issuance, sale or delivery of the Securities.
(viii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(ix) The Securities have been duly and validly authorized, and upon issuance and delivery of the Securities in accordance with the Underwriting Agreement, the Securities will be validly issued and will be fully paid and non-assessable and no holder of such Securities is or will be subject to personal liability by reason of being such a holder.
(x) The Securities conform in all material respects as to legal matters 60 days’ prior written notice mailed to the description thereof in the Registration Statement and the Prospectus.
(xi) The issuance registered holders of the Securities is not subject to preemptive or other similar rights of any security holder of the Company under applicable law, the Certificate of Incorporation or By-Laws of the Company, or, to our knowledge, any contract or agreement of the Company.
(xii) The statements made in the Prospectus under the caption “Description of Capital Stock – Common Stock,” to the extent they constitute matters of law or legal conclusions, have been reviewed by us and fairly present the information disclosed therein in all material respects.
(xiii) To the best of our knowledge, there are no statutes or regulations that are required to be described in the Prospectus that are not described as required.
(xiv) The Registration Statement, including any Rule 462(b) Registration Statement, has been declared effective under the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(xv) The Registration Statement (including the Rule 430A Information and any Rule 462(b) Registration Statement, as applicable) and the Prospectus, and each amendment or supplement thereto (except for the financial statements, financial schedules and other financial data included therein or omitted therefrom, as to which we are not required to, and do not, express an opinion), as of their respective effective or issue dates, complied as to form in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations.
(xvi) omitted.
(xvii) The form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Certificate of Incorporation and By-laws of the Company and the requirements of the New York Stock Exchange.
(xviii) To the best of our knowledge, except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any subsidiary is a party, or to which the property of the Company or any subsidthe
Appears in 1 contract
Sources: Underwriting Agreement
Arm’s Length Transaction. The Company company acknowledges and agrees that each of the Underwriters are is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an any agent of, the Company or any other person. Additionally, neither the Representatives nor any other no Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between among the Company and the several Underwriters. Very truly yours, HECLA MINING HEWLETT-PACKARD COMPANY By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Senior Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Title: Senior Vice President The foregoing Agreement is hereby confirmed and accepted as of the date first above written. ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED Title: Managing Director CITIGROUP GLOBAL MARKETS INC. By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Authorized Signatory SCOTIA CAPITAL (USA) INCTitle: Managing Director ▇.▇. ▇▇▇▇▇▇ SECURITIES LLC By: /s/ A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ A. Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Authorized Signatory Title: Executive Director For themselves and the other several Underwriters Underwriters, if any, named in Schedule I. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 12,400,000 Scotia Capital (USA) Inc. 7,750,000 BMO Capital Markets Corp. 5,425,000 RBC Capital Markets Corporation 5,425,000 A first Issuer Free Writing Prospectus, dated September 3, 2008 A second Issuer Free Writing Prospectus, dated September 3, 2008 Price per share II to the publicforegoing Agreement. Underwriting Agreement: $5.00 Offering SizeDated September 8, 2010 Registration Statement No.: 31,000,000 shares Over333-allotment Option159366 Representatives: 4,000,000 shares, if the Underwriters exercise their option to purchase additional shares in full Closing Date: September 12, 2008 September , 2008 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Barclays Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ As Representatives of the several Underwriters Ladies and Gentlemen: This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), between Hecla Mining Company, a Delaware corporation (the “Company”), and you as Representatives of a group of Underwriters named therein, relating to an underwritten public offering of shares of common stock, par value $0.25 per share, of the Company. In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned not including the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period beginning on the date hereof and continuing for 90 days after the date of the Underwriting Agreement (the “Lock-Up Period”), other than (i) capital stock disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc.; provided that the donee agrees in writing to be bound by the terms of this letter, (ii) capital stock that (when aggregated with all other shares of capital stock disposed of by executive officers and directors of the Company during such period) does not exceed 75,000 shares of capital stock, (iii) capital stock contributed by the Company to its 401(k), retirement, and employee benefit plans in the ordinary course of business and reallocation of funds within such accounts by the participants in or trustees or administrators of such plans, and (iv) capital stock disposed of under the Rule 10b5-1 trading plans or programs in existence of the date hereof. If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated. Yours very truly, [SIGNATURE] [NAME AND ADDRESS] Hecla Limited Hecla Alaska LLC ▇▇▇▇▇ Trading, Citigroup Global Markets Inc. Hecla Admiralty Company The selling restrictions are stated under the caption “Underwriting” in the Final Prospectus. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇ Securities LLC ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as representatives Co-Managers: Banc of the several Underwriters Ladies and GentlemenAmerica Securities LLC BNP Paribas Securities Corp. ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. HSBC Securities (USA) Inc. UBS Securities LLC ▇▇▇▇▇ Fargo Securities, LLC Title of Securities: We have acted as special counsel to Hecla Mining CompanyFloating Rate Global Notes due September 13, a Delaware corporation (the “Company”), in connection 2012 Ranking: Senior unsecured obligations ranking equally with the Company’s Registration Statement on Form S-3ASR (No. 333-145919) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act all other senior unsecured indebtedness of 1933, as amended (the “1933 Act”), including the information deemed to be a part of any such registration statement at the time of effectiveness pursuant to Rule 430A under the 1933 Act (the “Registration Statement”), and the prospectus dated September 7, 2007, together with the preliminary prospectus supplement dated September 2, 2008 (together with the Issuer Free Writing Prospectuses identified on Schedule II of the Underwriting Agreement and the pricing press release filed on Form 8-K on [date], the “Disclosure Package”) and the final prospectus supplement dated September 8, 2008 forming part of the Registration Statement (together with the Disclosure Package, the “Prospectus”), covering (i) the sale by the Company of shares of common stock, par value $0.25 per share (the “Common Stock”), of the Company and the purchase by each of the Underwriters named in Schedule I to the Underwriting Agreement (as defined below) (collectively, the “Underwriters”) of the respective numbers of shares of Common Stock set forth in Schedule I to the Underwriting Agreement and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) of the Underwriting Agreement to purchase up to 4,000,000 additional shares of Common Stock to cover over-allotments, if any, pursuant to the Underwriting Agreement dated September 8, 2008 (the “Underwriting Agreement”) among the Company and you, as representatives of the Underwriters. This opinion is furnished to you pursuant to Section 6(b) of the Underwriting Agreement. Capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to such terms in the Underwriting Agreement. In this connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of: (1) the Underwriting Agreement; (2) the Registration Statement; (3) the Prospectus; (4) the Company Agreements (as defined below); (5) resolutions adopted by the Board of Directors of the Company and the Executive Committee of the Board of Directors of the Company; (6) a specimen certificate evidencing the Securities; (7) the Certificate of Incorporation and By-laws of the Company; (8) a certificate of the Secretary of the State of Delaware as to the existence of the Company; and (9) such corporate and other records, certificates, documents and other papers as we deemed it necessary to examine for the purpose of this opinion. Based on the foregoing, in reliance upon the assumptions set forth herein and subject to the qualifications herein contained, we are of the opinion that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in each domestic jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to the Underwriting Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Disclosure Package and the Final Prospectus or pursuant to the exercise of convertible securities or options referred to in the Disclosure Package or the Final Prospectus); the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company.
(v) Each domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; to the best of our knowledge all of the issued and outstanding capital stock of each domestic Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the best of our knowledge, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except as provided in that certain Amended and Restated Credit Agreement dated as of April 16, 2008 by and among the Company, The Bank of Nova Scotia, as administrative agent for the lenders, and the various financial institutions and other persons HP from time to time parties thereto outstanding Principal Amount: $800,000,000 Interest Rate: Floating rate equal to three-month USD LIBOR plus 0.125% per annum. Purchase Price: 99.850% Offering Price: 100% Interest Payment Dates: Quarterly; March 13, June 13, September 13, and the related security agreement and pledge agreementDecember 13 of each year, as disclosed in the Registration Statementcommencing December 13, the Disclosure Package and the Final Prospectus; none of the outstanding shares of capital stock of any domestic Significant Subsidiary was issued in violation of the preemptive or similar rights of any security holder of such domestic Significant Subsidiary.
2010 (vi) To the best of our knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments (collectively, the “Company Agreements”) required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits subject to the Registration Statement, other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto in the Prospectus are correct in all material respects as to legal mattersmodified following business day convention).
(vii) We are not aware of any authorization, approval, consent or order of any agency, governmental authority or court (other than under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the rules and regulations of the New York Stock Exchange, or as may be required under the securities or blue sky laws of the various states or foreign jurisdictions as to which we are not required to, and does not, express an opinion), that is required for the due authorization, issuance, sale or delivery of the Securities.
(viii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(ix) The Securities have been duly and validly authorized, and upon issuance and delivery of the Securities in accordance with the Underwriting Agreement, the Securities will be validly issued and will be fully paid and non-assessable and no holder of such Securities is or will be subject to personal liability by reason of being such a holder.
(x) The Securities conform in all material respects as to legal matters to the description thereof in the Registration Statement and the Prospectus.
(xi) The issuance of the Securities is not subject to preemptive or other similar rights of any security holder of the Company under applicable law, the Certificate of Incorporation or By-Laws of the Company, or, to our knowledge, any contract or agreement of the Company.
(xii) The statements made in the Prospectus under the caption “Description of Capital Stock – Common Stock,” to the extent they constitute matters of law or legal conclusions, have been reviewed by us and fairly present the information disclosed therein in all material respects.
(xiii) To the best of our knowledge, there are no statutes or regulations that are required to be described in the Prospectus that are not described as required.
(xiv) The Registration Statement, including any Rule 462(b) Registration Statement, has been declared effective under the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(xv) The Registration Statement (including the Rule 430A Information and any Rule 462(b) Registration Statement, as applicable) and the Prospectus, and each amendment or supplement thereto (except for the financial statements, financial schedules and other financial data included therein or omitted therefrom, as to which we are not required to, and do not, express an opinion), as of their respective effective or issue dates, complied as to form in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations.
(xvi) omitted.
(xvii) The form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Certificate of Incorporation and By-laws of the Company and the requirements of the New York Stock Exchange.
(xviii) To the best of our knowledge, except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any subsidiary is a party, or to which the property of the Company or any subsid
Appears in 1 contract
Arm’s Length Transaction. The Company company acknowledges and agrees that each of the Underwriters are is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an any agent of, the Company or any other person. Additionally, neither the Representatives nor any other no Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between among the Company and the several Underwriters. Very truly yours, HECLA MINING HEWLETT-PACKARD COMPANY By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Senior Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. By: /s/ ▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇ Title: Principal CREDIT SUISSE SECURITIES (USA) LLC By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: Managing Director DEUTSCHE BANK SECURITIES INC. By: /s/ Ben-Zion Smilchensky Name: Ben-Zion Smilchensky Title: Managing Director By: /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: R. ▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Managing Director GREENWICH CAPITAL MARKETS, INC. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Title: Senior Vice President The foregoing Agreement is hereby confirmed and accepted as of the date first above written. ▇▇▇▇▇▇▇ LYNCH, PIERCE, Title: Managing Director ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED By: /s/ Yurij Slyz Name: Yurij Slyz Title: Vice President For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. Underwriting Agreement: Dated February 23, 2009 Registration Statement No.: 333-134327 Representatives: Banc of America Securities LLC ▇ ▇▇▇▇▇▇ INCORPORATED By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Credit Suisse Securities (USA) LLC Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Deutsche Bank Securities Inc. ▇▇ ▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Greenwich Capital Markets, Inc. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ Authorized Signatory SCOTIA CAPITAL (USA) INC. By: /s/ A. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ A. ▇▇▇▇ & Co. Incorporated ▇▇▇▇ ▇▇▇▇ Authorized Signatory For themselves and the other several Underwriters named in Schedule I. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 12,400,000 Scotia Capital (USA) Inc. 7,750,000 BMO Capital Markets Corp. 5,425,000 RBC Capital Markets Corporation 5,425,000 A first Issuer Free Writing Prospectus, dated September 3, 2008 A second Issuer Free Writing Prospectus, dated September 3, 2008 Price per share to the public: $5.00 Offering Size: 31,000,000 shares Over-allotment Option: 4,000,000 shares, if the Underwriters exercise their option to purchase additional shares in full Closing Date: September 12, 2008 September , 2008 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ As Representatives of the several Underwriters Ladies and GentlemenCo-Managers: This letter is being delivered to you in connection with the proposed Underwriting Agreement Barclays Capital Inc. BNP Paribas Securities Corp. HSBC Securities (the “Underwriting Agreement”), between Hecla Mining Company, a Delaware corporation (the “Company”), and you as Representatives of a group of Underwriters named therein, relating to an underwritten public offering of shares of common stock, par value $0.25 per share, of the Company. In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of ▇▇USA) Inc. Mitsubishi UFJ Securities International plc ▇▇▇▇▇ LynchFargo Securities, PierceLLC Title of Securities: Floating Rate Global Notes due February 24, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned not including the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period beginning on the date hereof and continuing for 90 days after the date of the Underwriting Agreement (the “Lock-Up Period”), other than (i) capital stock disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc.; provided that the donee agrees in writing to be bound by the terms of this letter, (ii) capital stock that (when aggregated 2011 Ranking: Senior unsecured obligations ranking equally with all other shares senior unsecured indebtedness of capital stock disposed of by executive officers and directors of the Company during such period) does not exceed 75,000 shares of capital stock, (iii) capital stock contributed by the Company to its 401(k), retirement, and employee benefit plans in the ordinary course of business and reallocation of funds within such accounts by the participants in or trustees or administrators of such plans, and (iv) capital stock disposed of under the Rule 10b5-1 trading plans or programs in existence of the date hereof. If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated. Yours very truly, [SIGNATURE] [NAME AND ADDRESS] Hecla Limited Hecla Alaska LLC ▇▇▇▇▇ Trading, Inc. Hecla Admiralty Company The selling restrictions are stated under the caption “Underwriting” in the Final Prospectus. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as representatives of the several Underwriters Ladies and Gentlemen: We have acted as special counsel to Hecla Mining Company, a Delaware corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-3ASR (No. 333-145919) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”), including the information deemed to be a part of any such registration statement at the time of effectiveness pursuant to Rule 430A under the 1933 Act (the “Registration Statement”), and the prospectus dated September 7, 2007, together with the preliminary prospectus supplement dated September 2, 2008 (together with the Issuer Free Writing Prospectuses identified on Schedule II of the Underwriting Agreement and the pricing press release filed on Form 8-K on [date], the “Disclosure Package”) and the final prospectus supplement dated September 8, 2008 forming part of the Registration Statement (together with the Disclosure Package, the “Prospectus”), covering (i) the sale by the Company of shares of common stock, par value $0.25 per share (the “Common Stock”), of the Company and the purchase by each of the Underwriters named in Schedule I to the Underwriting Agreement (as defined below) (collectively, the “Underwriters”) of the respective numbers of shares of Common Stock set forth in Schedule I to the Underwriting Agreement and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) of the Underwriting Agreement to purchase up to 4,000,000 additional shares of Common Stock to cover over-allotments, if any, pursuant to the Underwriting Agreement dated September 8, 2008 (the “Underwriting Agreement”) among the Company and you, as representatives of the Underwriters. This opinion is furnished to you pursuant to Section 6(b) of the Underwriting Agreement. Capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to such terms in the Underwriting Agreement. In this connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of: (1) the Underwriting Agreement; (2) the Registration Statement; (3) the Prospectus; (4) the Company Agreements (as defined below); (5) resolutions adopted by the Board of Directors of the Company and the Executive Committee of the Board of Directors of the Company; (6) a specimen certificate evidencing the Securities; (7) the Certificate of Incorporation and By-laws of the Company; (8) a certificate of the Secretary of the State of Delaware as to the existence of the Company; and (9) such corporate and other records, certificates, documents and other papers as we deemed it necessary to examine for the purpose of this opinion. Based on the foregoing, in reliance upon the assumptions set forth herein and subject to the qualifications herein contained, we are of the opinion that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in each domestic jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to the Underwriting Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Disclosure Package and the Final Prospectus or pursuant to the exercise of convertible securities or options referred to in the Disclosure Package or the Final Prospectus); the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company.
(v) Each domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; to the best of our knowledge all of the issued and outstanding capital stock of each domestic Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the best of our knowledge, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except as provided in that certain Amended and Restated Credit Agreement dated as of April 16, 2008 by and among the Company, The Bank of Nova Scotia, as administrative agent for the lenders, and the various financial institutions and other persons HP from time to time parties thereto outstanding Principal Amount: $275,000,000 Interest Rate: Floating rate equal to three-month USD LIBOR plus 1.75% per annum. Purchase Price: 99.85% Offering Price: 100% Interest Payment Dates: Quarterly; February 24, May 24, August 24 and the related security agreement and pledge agreementNovember 24 of each year, as disclosed in the Registration Statementcommencing May 2, the Disclosure Package and the Final Prospectus; none of the outstanding shares of capital stock of any domestic Significant Subsidiary was issued in violation of the preemptive or similar rights of any security holder of such domestic Significant Subsidiary.
2009 (vi) To the best of our knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments (collectively, the “Company Agreements”) required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits subject to the Registration Statementmodified following business day convention). Interest Reset Dates: Quarterly; February 24, other than those described or referred to therein or filed or incorporated by reference as exhibits theretoMay 24, August 24 and the descriptions thereof or references thereto in the Prospectus are correct in all material respects as to legal matters.
November 24 of each year, commencing May 24, 2009 (vii) We are not aware of any authorization, approval, consent or order of any agency, governmental authority or court (other than under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the rules and regulations of the New York Stock Exchange, or as may be required under the securities or blue sky laws of the various states or foreign jurisdictions as to which we are not required to, and does not, express an opinion), that is required for the due authorization, issuance, sale or delivery of the Securities.
(viii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(ix) The Securities have been duly and validly authorized, and upon issuance and delivery of the Securities in accordance with the Underwriting Agreement, the Securities will be validly issued and will be fully paid and non-assessable and no holder of such Securities is or will be subject to personal liability by reason of being such a holderthe modified following business day convention).
(x) The Securities conform in all material respects as to legal matters to the description thereof in the Registration Statement and the Prospectus.
(xi) The issuance of the Securities is not subject to preemptive or other similar rights of any security holder of the Company under applicable law, the Certificate of Incorporation or By-Laws of the Company, or, to our knowledge, any contract or agreement of the Company.
(xii) The statements made in the Prospectus under the caption “Description of Capital Stock – Common Stock,” to the extent they constitute matters of law or legal conclusions, have been reviewed by us and fairly present the information disclosed therein in all material respects.
(xiii) To the best of our knowledge, there are no statutes or regulations that are required to be described in the Prospectus that are not described as required.
(xiv) The Registration Statement, including any Rule 462(b) Registration Statement, has been declared effective under the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(xv) The Registration Statement (including the Rule 430A Information and any Rule 462(b) Registration Statement, as applicable) and the Prospectus, and each amendment or supplement thereto (except for the financial statements, financial schedules and other financial data included therein or omitted therefrom, as to which we are not required to, and do not, express an opinion), as of their respective effective or issue dates, complied as to form in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations.
(xvi) omitted.
(xvii) The form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Certificate of Incorporation and By-laws of the Company and the requirements of the New York Stock Exchange.
(xviii) To the best of our knowledge, except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any subsidiary is a party, or to which the property of the Company or any subsid
Appears in 1 contract
Arm’s Length Transaction. The Company acknowledges and agrees that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, neither the Representatives nor any other Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between the Company and the several Underwriters. Very truly yours, HECLA MINING COMPANY US GOLD CORPORATION By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ PERRY ING Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Perry Ing Title: Senior Vice President Chief Financial Officer The foregoing Agreement is hereby confirmed and accepted as of the date first above written. ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED By: /s/ K▇▇▇▇ ▇▇▇▇ Authorized Signatory D▇▇▇▇▇▇ ▇▇▇▇ & COMPANY, LLC By: /s/ R▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Authorized Signatory SCOTIA CAPITAL (USA) INC. By: /s/ A. GMP Securities L.P. 11,000,000 D▇▇▇▇▇▇ ▇▇▇▇ A. & Company, LLC 11,000,000 Total 22,000,000 None.
(a) The Company agrees that the Underwriters will be permitted to appoint, at their sole expense, other registered dealers or brokers as their agents to assist in the distribution of the Securities. The Underwriters shall, and shall require any such dealer or broker, other than the Underwriters, with which the Underwriters have a contractual relationship in respect of the distribution of the Securities (a “Selling Firm”), to comply with the Canadian Securities Laws and the applicable provisions of the Act in connection with the distribution of the Securities and shall offer the Securities for sale to the public directly and through Selling Firms upon the terms and conditions set out in the Final Prospectus, the Final Canadian MJDS Supplement and this Agreement. The Underwriters shall, and shall require any Selling Firm, to offer for sale to the public and sell the Shares only in those jurisdictions where they may be lawfully offered for sale or sold.
(b) Notwithstanding the foregoing, an Underwriter will not be liable for any breach under this Exhibit A by another Underwriter if the Underwriter first mentioned is not itself also in breach of this Exhibit A.
(c) D▇▇▇▇▇▇ ▇▇▇▇ Authorized Signatory For themselves and shall offer the other several Underwriters named in Schedule I. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 12,400,000 Scotia Capital (USA) Inc. 7,750,000 BMO Capital Markets Corp. 5,425,000 RBC Capital Markets Corporation 5,425,000 A first Issuer Free Writing Prospectus, dated September 3, 2008 A second Issuer Free Writing Prospectus, dated September 3, 2008 Price per share Securities for sale to the public: $5.00 Offering Size: 31,000,000 shares Over-allotment Option: 4,000,000 shares, if the Underwriters exercise their option to purchase additional shares in full Closing Date: September 12, 2008 September , 2008 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ As Representatives of the several Underwriters Ladies and Gentlemen: This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), between Hecla Mining Company, a Delaware corporation (the “Company”), and you as Representatives of a group of Underwriters named therein, relating to an underwritten public offering of shares of common stock, par value $0.25 per share, of the Company. In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result only in the disposition U.S.
(whether by actual disposition or effective economic disposition due d) For the purposes of this Exhibit A, GMP shall be entitled to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned not including the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with assume that the Securities and Exchange Commission are qualified for distribution in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period beginning on the date hereof and continuing for 90 days after the date of the Underwriting Agreement (the “Lock-Up Period”), other than (i) capital stock disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc.; provided that the donee agrees in writing to be bound by the terms of this letter, (ii) capital stock that (when aggregated with all other shares of capital stock disposed of by executive officers and directors of the Company during such period) does not exceed 75,000 shares of capital stock, (iii) capital stock contributed by the Company to its 401(k), retirement, and employee benefit plans in the ordinary course of business and reallocation of funds within such accounts by the participants in or trustees or administrators of such plans, and (iv) capital stock disposed of under the Rule 10b5-1 trading plans or programs in existence of the date hereof. If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated. Yours very truly, [SIGNATURE] [NAME AND ADDRESS] Hecla Limited Hecla Alaska LLC ▇▇▇▇▇ Trading, Inc. Hecla Admiralty Company The selling restrictions are stated under the caption “Underwriting” in the Final Prospectus. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as representatives of the several Underwriters Ladies and Gentlemen: We have acted as special counsel to Hecla Mining Company, a Delaware corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-3ASR (No. 333-145919) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”), including the information deemed to be a part of any such registration statement at the time of effectiveness pursuant to Rule 430A under the 1933 Act (the “Registration Statement”), and the prospectus dated September 7, 2007, together with the preliminary prospectus supplement dated September 2, 2008 (together with the Issuer Free Writing Prospectuses identified on Schedule II of the Underwriting Agreement and the pricing press release filed on Form 8-K on [date], the “Disclosure Package”) and the final prospectus supplement dated September 8, 2008 forming part of the Registration Statement (together with the Disclosure Package, the “Prospectus”), covering (i) the sale by the Company of shares of common stock, par value $0.25 per share (the “Common Stock”), of the Company and the purchase by each of the Underwriters named in Schedule I to the Underwriting Agreement (as defined below) (collectively, the “Underwriters”) of the respective numbers of shares of Common Stock set forth in Schedule I to the Underwriting Agreement and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) of the Underwriting Agreement to purchase up to 4,000,000 additional shares of Common Stock to cover over-allotments, if any, pursuant to the Underwriting Agreement dated September 8, 2008 (the “Underwriting Agreement”) among the Company and you, as representatives of the Underwriters. This opinion is furnished to you pursuant to Section 6(b) of the Underwriting Agreement. Capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to such terms in the Underwriting Agreement. In this connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of: (1) the Underwriting Agreement; (2) the Registration Statement; (3) the Prospectus; (4) the Company Agreements (as defined below); (5) resolutions adopted by the Board of Directors of the Company and the Executive Committee of the Board of Directors of the Company; (6) a specimen certificate evidencing the Securities; (7) the Certificate of Incorporation and By-laws of the Company; (8) a certificate of the Secretary of the State of Delaware as to the existence of the Company; and (9) such corporate and other records, certificates, documents and other papers as we deemed it necessary to examine for the purpose of this opinion. Based on the foregoing, in reliance upon the assumptions set forth herein and subject to the qualifications herein contained, we are of the opinion that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of DelawareCanadian Jurisdiction.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in each domestic jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to the Underwriting Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Disclosure Package and the Final Prospectus or pursuant to the exercise of convertible securities or options referred to in the Disclosure Package or the Final Prospectus); the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company.
(v) Each domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; to the best of our knowledge all of the issued and outstanding capital stock of each domestic Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the best of our knowledge, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity except as provided in that certain Amended and Restated Credit Agreement dated as of April 16, 2008 by and among the Company, The Bank of Nova Scotia, as administrative agent for the lenders, and the various financial institutions and other persons from time to time parties thereto and the related security agreement and pledge agreement, as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; none of the outstanding shares of capital stock of any domestic Significant Subsidiary was issued in violation of the preemptive or similar rights of any security holder of such domestic Significant Subsidiary.
(vi) To the best of our knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments (collectively, the “Company Agreements”) required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement, other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto in the Prospectus are correct in all material respects as to legal matters.
(vii) We are not aware of any authorization, approval, consent or order of any agency, governmental authority or court (other than under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the rules and regulations of the New York Stock Exchange, or as may be required under the securities or blue sky laws of the various states or foreign jurisdictions as to which we are not required to, and does not, express an opinion), that is required for the due authorization, issuance, sale or delivery of the Securities.
(viii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(ix) The Securities have been duly and validly authorized, and upon issuance and delivery of the Securities in accordance with the Underwriting Agreement, the Securities will be validly issued and will be fully paid and non-assessable and no holder of such Securities is or will be subject to personal liability by reason of being such a holder.
(x) The Securities conform in all material respects as to legal matters to the description thereof in the Registration Statement and the Prospectus.
(xi) The issuance of the Securities is not subject to preemptive or other similar rights of any security holder of the Company under applicable law, the Certificate of Incorporation or By-Laws of the Company, or, to our knowledge, any contract or agreement of the Company.
(xii) The statements made in the Prospectus under the caption “Description of Capital Stock – Common Stock,” to the extent they constitute matters of law or legal conclusions, have been reviewed by us and fairly present the information disclosed therein in all material respects.
(xiii) To the best of our knowledge, there are no statutes or regulations that are required to be described in the Prospectus that are not described as required.
(xiv) The Registration Statement, including any Rule 462(b) Registration Statement, has been declared effective under the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(xv) The Registration Statement (including the Rule 430A Information and any Rule 462(b) Registration Statement, as applicable) and the Prospectus, and each amendment or supplement thereto (except for the financial statements, financial schedules and other financial data included therein or omitted therefrom, as to which we are not required to, and do not, express an opinion), as of their respective effective or issue dates, complied as to form in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations.
(xvi) omitted.
(xvii) The form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any applicable requirements of the Certificate of Incorporation and By-laws of the Company and the requirements of the New York Stock Exchange.
(xviii) To the best of our knowledge, except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any subsidiary is a party, or to which the property of the Company or any subsid
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