24,000,000 Shares Coeur d’Alene Mines Corporation Common Stock Underwriting Agreement
Exhibit 1.1
EXECUTION COPY
24,000,000 Shares
Coeur d’▇▇▇▇▇ ▇▇▇▇▇ Corporation
Common Stock
March 16, 2006
Deutsche Bank Securities Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
RBC Capital Markets Corporation
As Representatives of the
Several Underwriters
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
RBC Capital Markets Corporation
As Representatives of the
Several Underwriters
c/o Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Coeur d’▇▇▇▇▇ ▇▇▇▇▇ Corporation, an Idaho corporation (the “Company”), proposes, subject to
the terms and conditions stated herein, to issue and sell to the several underwriters (the
“Underwriters”) named in Schedule I hereto for whom Deutsche Bank Securities Inc., ▇.▇. ▇▇▇▇▇▇
Securities Inc., Bear, ▇▇▇▇▇▇▇ & Co. Inc. and RBC Capital Markets Corporation are acting as
representatives (the “Representative”) an aggregate of 24,000,000 shares (the “Firm Shares”) of
common stock, par value $1.00 per share, of the Company (“Common Stock”). The respective amounts
of the Firm Shares to be so purchased by the several Underwriters are set forth opposite their
names in Schedule I hereto. The Company also proposes to sell at the Underwriters’ option an
aggregate of up to 3,600,000 additional shares of the Company’s Common Stock (the “Option Shares”)
as set forth below. The Firm Shares and the Option Shares (to the extent the aforementioned option
is exercised) are herein collectively referred to as the “Shares”.
The Company has prepared and filed in conformity with the requirements of the Securities Act
of 1933, as amended (the “Securities Act”), and the published rules and regulations thereunder (the
“Rules”) adopted by the Securities and Exchange Commission (the “Commission”) an “automatic shelf
registration statement” (as defined in Rule 405 under the Securities Act) on Form S-3 (File No.
333-130711), including a related prospectus (the “Base Prospectus”) relating to Common Stock,
preferred stock, debt securities and warrants of the Company that may be sold from time to time by
the Company in accordance with Rule 415
under the Securities Act. Copies of such registration statement (including all documents
deemed incorporated by reference therein) and of the related Base Prospectus have heretofore been
delivered by the Company or are otherwise available to the Representatives. Such registration
statement, together with any registration statement filed by the Company pursuant to Rules 413(b)
and 462(f) under the Securities Act, is herein referred to as the “Registration Statement,” which
shall be deemed to include all information omitted therefrom in reliance upon Rules 430A, 430B and
430C under the Securities Act and contained in the Prospectus referred to below. The term
“Preliminary Prospectus” means any preliminary prospectus included in the Registration Statement or
filed with the Commission pursuant to Rule 424 of the Rules or any preliminary prospectus
supplement used prior to the filing of the Prospectus Supplement (as defined below). The term
“Pricing Prospectus” means the Base Prospectus, as amended and supplemented immediately prior to
the Applicable Time (as defined below). The term “Prospectus” means the Base Prospectus, the
Pricing Prospectus, any Preliminary Prospectus and any amendments or further supplements to such
prospectus, including, without limitation, the final prospectus supplement (the “Prospectus
Supplement”), filed pursuant to Rule 424(b) with the Commission in connection with the proposed
sale of the Shares contemplated by this Agreement through the date of such Prospectus Supplement.
The term “Issuer Free Writing Prospectus” means each “issuer free writing prospectus” (as defined
in Rule 433 of the Rules) prepared by or on behalf of the Company or used or referred to by the
Company in connection with the offering of the Shares. The term “Pricing Disclosure Package”
means, as of the Applicable Time, the Pricing Prospectus, together with each Issuer Free Writing
Prospectus, if any, listed on Schedule II hereto and the information, if any, included on Schedule
III hereto. The term “Effective Date” shall mean each date that the Registration Statement and any
post effective amendment or amendments thereto became or become effective. Unless otherwise stated
herein, any reference herein to the Registration Statement, the Base Prospectus, the Pricing
Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act, which were filed under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) on or before the date hereof. Any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement or the Prospectus shall be
deemed to refer to and include any such document filed or to be filed under the Exchange Act after
the date of the Registration Statement or Prospectus, as the case may be, and deemed to be
incorporated therein by reference. The term “Applicable Time” means 5:00 p.m. (New York City time)
on the date of this agreement.
The Company understands that the Underwriters propose to make a public offering of the Shares,
as set forth in and pursuant to the Pricing Disclosure Package and the Prospectus, as soon after
each Closing Date (as defined herein), as the Underwriters deem advisable.
The Company hereby confirms that the Underwriters and dealers have been authorized to
distribute or cause to be distributed each Pricing Disclosure Package and Prospectus and are
authorized to distribute the Pricing Disclosure Package and the Prospectus (as from time to time
amended or supplemented if the Company furnishes amendments or supplements thereto to the
Underwriter).
In consideration of the mutual agreements contained herein and of the interests of the parties
in the transactions contemplated hereby, the parties hereto agree as follows:
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1. Representations and Warranties of the Company. The Company represents and warrants
to each of the Underwriters as of the date hereof and as of each Closing Date as follows:
(a) The Company has been since the time of initial filing of the Registration Statement and
continues to be a “well-known seasoned issuer” (as defined in Rule 405 of the Rules) eligible to
use Form S-3 for the offering of the Shares including not having been an “ineligible issuer” (as
defined in Rule 405) at any such time or date. The Registration Statement is an “automatic shelf
registration statement” (as defined in Rule 405 of the Rules) and was filed not earlier than the
date that is three years prior to each Closing Date.
(b) The Company meets the requirements for use of Form S-3 under the Securities Act and has
filed with the Commission the Registration Statement on such form, including a Base Prospectus, for
registration under the Securities Act of the offering and sale of the Shares. Such Registration
Statement is effective. When the Registration Statement or any amendment thereof or supplement
thereto was or is declared effective or filed, as the case may be, it (i) complied or will comply
in all material respects with the applicable provisions of the Securities Act and the Rules and
(ii) did not or will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the statements therein
not misleading. When any related Preliminary Prospectus was first filed with the Commission
(whether filed as part of the Registration Statement or any amendment thereto or pursuant to Rule
424(a) of the Rules) and when any amendment thereof or supplement thereto was first filed with the
Commission, such Preliminary Prospectus as amended or supplemented (i) complied in all material
respects with the applicable provisions of the Securities Act and the Rules and (ii) did not
contain any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The Prospectus, as of its date, and each Closing Date
(i) will comply in all material respects with the applicable provisions of the Securities Act and
the Rules and (ii) will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading. The Pricing Disclosure
Package, as of the Applicable Time and each Closing Date (i) complied or will comply in all
material respects with the applicable provisions of the Securities Act and the Rules and (ii) did
not and will not contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Each Issuer Free Writing Prospectus,
when considered together with the Pricing Disclosure Package, as of the Applicable Time and all
subsequent times through each Closing Date (i) complied or will comply in all material respects
with the applicable provisions of the Securities Act and the Rules and (ii) did not or will not
contain any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. Each Issuer Free Writing Prospectus does not or will
not conflict with the information contained in the Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus. If applicable, each Preliminary Prospectus,
the Pricing Prospectus and the Prospectus delivered to the Underwriters for use in connection with
this offering was identical to the electronically transmitted copies thereof filed with the
Commission pursuant to
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▇▇▇▇▇, except to the extent permitted by Regulation S-T. Notwithstanding the foregoing, none
of the representations and warranties in this Section 1(b) shall apply to statements in, or
omissions from, the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus, any
Issuer Free Writing Prospectus or the Prospectus made in reliance upon, and in conformity with,
information herein or otherwise furnished in writing by any of the Underwriters through the
Representatives for use in the Registration Statement or the Prospectus. With respect to the
preceding sentence, the Company acknowledges that the only information furnished in writing by any
of the Underwriters through the Representatives for use in the Registration Statement, any
Preliminary Prospectus, the Pricing Prospectus, any Issuer Free Writing Prospectus or the
Prospectus is the statements contained in the third and ninth paragraphs under the caption
“Underwriting” in the Prospectus Supplement.
(c) The Company has not made any offer relating to the Shares that would constitute a “free
writing prospectus” as defined in Rule 405 under the Securities Act without the prior written
consent of Deutsche Bank Securities Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc.
(d) The Company has complied with the requirements of Rule 433 under the Securities Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending.
(e) The Registration Statement is effective under the Securities Act and no stop order
preventing or suspending the effectiveness of the Registration Statement or suspending or
preventing the use of any Preliminary Prospectus, the Pricing Prospectus, any Issuer Free Writing
Prospectus or the Prospectus has been issued by the Commission and no proceedings for that purpose
have been instituted or, to the Company’s knowledge, are threatened under the Securities Act. Any
required filing of the Prospectus and any supplement thereto pursuant to Rule 424(b) of the Rules
has been or will be made in the manner and within the time period required by such Rule 424(b).
(f) The documents incorporated by reference in the Registration Statement, the Pricing
Prospectus and the Prospectus, at the time they became effective or were filed with the Commission,
as the case may be, complied in all material respects with the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading, and any further
documents so filed and incorporated by reference in the Registration Statement, the Pricing
Prospectus and the Prospectus, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
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(g) The consolidated financial statements of the Company (including all notes and schedules
thereto) included or incorporated by reference in the Registration Statement, the Pricing
Disclosure Package and the Prospectus present fairly, in all material respects, the financial
position of the Company and its consolidated subsidiaries at the dates indicated and the statement
of operations, stockholders’ equity and cash flows of the Company and its consolidated subsidiaries
for the periods specified; and such consolidated financial statements and related schedules and
notes thereto, and the unaudited financial information filed with the Commission as part of the
Registration Statement, the Pricing Disclosure Package and the Prospectus, have been prepared in
conformity with generally accepted accounting principles, consistently applied throughout the
periods involved. The summary and selected financial data included in the Pricing Disclosure
Package and the Prospectus present fairly the information shown therein as at the respective dates
and for the respective periods specified and have been presented on a basis consistent with the
consolidated financial statements set forth in the Prospectus and other financial information. The
financial information included in or incorporated in the Registration Statement, the Pricing
Disclosure Package and the Prospectus complies with the requirements of Regulation G and Item 10 of
Regulation S-K of the Commission.
(h) KPMG LLP, whose reports are filed with the Commission as a part of the Registration
Statement, are and, during the periods covered by its reports, were an independent registered
public accounting firm as required by the Securities Act and the Rules.
(i) Each of the Company and its significant subsidiaries, as such term is defined in Rule 1-02
of Regulation S-X (the “Significant Subsidiaries”), is duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of incorporation or organization. Each of
the Company and each such subsidiary is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which the nature of the business conducted by it or
location of the assets or properties owned, leased or licensed by it requires such qualification,
except for such jurisdictions where the failure to so qualify individually or in the aggregate
would not have a material adverse effect on the assets, properties, condition, financial or
otherwise, or in the results of operations, business affairs or business prospects of the Company
and its subsidiaries considered as a whole (a “Material Adverse Effect”); and to the Company’s
knowledge, no proceeding has been instituted in any such jurisdiction revoking, limiting or
curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification.
(j) Each of the Company and its subsidiaries has all requisite corporate power and authority,
and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits
of and from all governmental or regulatory bodies or any other person or entity (collectively, the
“Permits”), to own, lease and license its assets and properties and conduct its business, all of
which are valid and in full force and effect, except where the lack of such Permits, individually
or in the aggregate, would not have a Material Adverse Effect. The Company and each of its
subsidiaries has fulfilled and performed in all material respects all of its material obligations
with respect to such Permits and no event has occurred that allows, or after notice or lapse of
time would allow, revocation or termination thereof or results in any other material impairment of
the rights of the Company thereunder. Except as may be required under
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the Securities Act and state and foreign Blue Sky laws, no other Permits are required to enter
into, deliver and perform this Agreement and to issue and sell the Shares.
(k) Each of the Company and its subsidiaries owns or possesses legally enforceable rights to
use all trademarks, trademark applications, trade names, service marks, copyrights, copyright
applications, licenses, know-how and other similar rights and proprietary knowledge (collectively,
“Intangibles”) necessary for the conduct of its business. Neither the Company nor any of its
subsidiaries has received any notice of, or is not aware of, any infringement of or conflict with
asserted rights of others with respect to any Intangibles.
(l) The Company and each of its subsidiaries has good and marketable title in fee simple to
all real property, and good and marketable title to all other property owned by it, in each case
free and clear of all liens, encumbrances, claims, security interests and defects, except (A) as
disclosed in the Company’s filings with the Commission under the Exchange Act and (B) such as do
not materially affect the value of such property and do not materially interfere with the use made
or proposed to be made of such property by the Company and its subsidiaries. All property held
under lease by the Company and its subsidiaries is held by them under valid, existing and
enforceable leases, free and clear of all liens, encumbrances, claims, security interests and
defects, except such as are not material and do not materially interfere with the use made or
proposed to be made of such property by the Company and its subsidiaries.
(m) There are no litigation or governmental proceedings to which the Company or any of its
subsidiaries is subject or that is pending or, to the knowledge of the Company, threatened, against
the Company or any of its subsidiaries that, individually or in the aggregate, might have a
Material Adverse Effect, affect the consummation of this Agreement or that is required to be
disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus that is
not so disclosed.
(n) Since the respective dates as of which information is given in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, as it may be amended or supplemented,
except as described therein, (i) there has not been any change in the assets or properties,
business, results of operations, prospects or condition (financial or otherwise), of the Company
and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary
course of business which would have a Material Adverse Effect; (ii) neither the Company nor any of
its subsidiaries has sustained any loss or interference with its assets, businesses or properties
(whether owned or leased) from fire, explosion, earthquake, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or any court or legislative or other governmental
action, order or decree which would have a Material Adverse Effect; and (iii) since the date of the
latest balance sheet included or incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, neither the Company nor its subsidiaries has (A)
issued any securities or incurred any liability or obligation, direct or contingent, for borrowed
money, except for such liabilities or obligations incurred in the ordinary course of business, (B)
entered into any transaction not in the ordinary course of business or (C) except for regular
dividends on the Common Stock in amounts per share that are consistent with past practice, declared
or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or
otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its capital
stock.
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(o) There is no document, contract or other agreement required to be described in the
Registration Statement, Pricing Disclosure Package or Prospectus or to be filed as an exhibit to
the Registration Statement which is not described or filed as required by the Securities Act or
Rules. Each description of a contract, document or other agreement in the Registration Statement,
the Pricing Disclosure Package and the Prospectus accurately reflects in all material respects the
terms of the underlying contract, document or other agreement. Each contract, document or other
agreement described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus or listed in the Exhibits to the Registration Statement or incorporated by reference is
in full force and effect and is valid and enforceable by and against the Company or its subsidiary,
as the case may be, in accordance with its terms. Neither the Company nor any of its subsidiaries,
if a subsidiary is a party, nor to the Company’s knowledge, any other party is in default in the
observance or performance of any term or obligation to be performed by it under any such agreement,
and no event has occurred which with notice or lapse of time or both would constitute such a
default, in any such case which default or event, individually or in the aggregate, would have a
Material Adverse Effect. No default exists, and no event has occurred which with notice or lapse
of time or both would constitute a default, in the due performance and observance of any term,
covenant or condition, by the Company or its subsidiary, if a subsidiary is a party thereto, of any
other agreement or instrument to which the Company or any of its subsidiaries is a party or by
which Company or its properties or business or a subsidiary or its properties or business may be
bound or affected which default or event, individually or in the aggregate, would have a Material
Adverse Effect.
(p) Neither the Company nor any of its subsidiaries is in violation of any term or provision
of its charter or by-laws or of any franchise, license, permit, judgment, decree, order, statute,
rule or regulation, where the consequences of such violation, individually or in the aggregate,
would have a Material Adverse Effect.
(q) Neither the execution, delivery and performance of this Agreement by the Company nor the
consummation of any of the transactions contemplated hereby (including, without limitation, the
issuance and sale by the Company of the Shares) will give rise to a right to terminate or
accelerate the due date of any payment due under, or conflict with or result in the breach of any
term or provision of, or constitute a default (or an event which with notice or lapse of time or
both would constitute a default) under, or require any consent or waiver under, or result in the
execution or imposition of any lien, charge or encumbrance upon any properties or assets of the
Company or its subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or
other agreement or instrument to which the Company or any of its subsidiaries is a party or by
which either the Company or its subsidiaries or any of their properties or businesses is bound, or
any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to
the Company or any of its subsidiaries or violate any provision of the charter or by-laws of the
Company or any of its subsidiaries, except for such consents or waivers which have already been
obtained and are in full force and effect.
(r) The Company has an authorized capitalization as set forth in the Pricing Prospectus and
the Prospectus, and all the issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable. There are no statutory
preemptive or other similar rights to subscribe for or to purchase or acquire any shares of Common
Stock of the Company or any of its subsidiaries or any such rights pursuant to
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its
certificate of incorporation or by-laws or any agreement or instrument to or by which the Company
or any of its subsidiaries is a party or bound. The Shares, when issued and sold pursuant to this
Agreement, will be duly and validly issued, fully paid and nonassessable and none of them will be
issued in violation of any preemptive or other similar right. Except as disclosed in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, there is no outstanding
option, warrant or other right calling for the issuance of, and there is no commitment, plan or
arrangement to issue, any share of stock of the Company or any of its subsidiaries or any security
convertible into, or exercisable or exchangeable for, such stock. The Common Stock and the Shares
conform in all material respects to all statements in relation thereto contained in the
Registration Statement, the Pricing Disclosure Package and the Prospectus.
(s) All outstanding shares of capital stock of each of the Company’s Significant Subsidiaries
have been duly authorized and validly issued, and, except for directors’ qualifying shares, are
fully paid and nonassessable and are owned directly by the Company or by another wholly-owned
subsidiary of the Company free and clear of any security interests, liens, encumbrances, equities
or claims, other than those described in the Registration Statement, the Pricing Disclosure Package
and the Prospectus.
(t) No holder of any security of the Company has any right, which has not been waived, to have
any security owned by such holder included in the Registration Statement or to demand registration
of any security owned by such holder for a period of 90 days after the date of this Agreement. An
enforceable written Lockup agreement in the form attached to this Agreement as Annex I (“Lockup
Agreement”) has been delivered to the Representatives by each person listed on Exhibit A thereto.
(u) All necessary corporate action has been duly and validly taken by the Company to authorize
the execution, delivery and performance by the Company of this Agreement and the issuance and sale
by the Company of the Shares. This Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes the legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors’ rights generally and by general equitable principles.
(v) Neither the Company nor any of its subsidiaries is involved in any labor dispute nor, to
the knowledge of the Company, is any such dispute threatened, which dispute would have a Material
Adverse Effect. The Company is not aware of any existing or imminent labor disturbance by the
employees of any of its principal suppliers or contractors which would have a Material Adverse
Effect. The Company is not aware of any threatened or pending litigation between the Company or its
subsidiaries and any of its executive officers which, if adversely determined, could have a
Material Adverse Effect and has no reason to believe that such officers will not remain in the
employment of the Company.
(w) No transaction has occurred between or among the Company and any of its officers or
directors, shareholders or any affiliate or affiliates of any such officer or
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director or
shareholder that is required to be described in and is not described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus.
(x) The Company has not taken, nor will it take, directly or indirectly, any action designed
to or which might reasonably be expected to cause or result in, or which has constituted or which
might reasonably be expected to constitute, the stabilization or manipulation of the price of the
Common Stock or any security of the Company to facilitate the sale or resale of any of the Shares.
(y) The Company and each of its Significant Subsidiaries has filed all Federal, state, local
and foreign tax returns which are required to be filed through the date hereof, which returns are
true and correct in all material respects or has received timely extensions thereof, and has paid
all taxes shown on such returns and all assessments received by it to the extent that the same are
material and have become due. There are no tax audits or investigations pending, which if adversely
determined would have a Material Adverse Effect; nor are there any material proposed additional tax
assessments against the Company or any of its Significant Subsidiaries.
(z) The Shares will have been duly authorized for listing on the New York Stock Exchange and
the Toronto Stock Exchange on or prior to the Initial Closing Date (as defined herein), subject to
official notice of issuance.
(aa) The Company has taken no action designed to, or likely to have the effect of, terminating
the registration of the Common Stock under the Exchange Act or listing on the New York Stock
Exchange or the Toronto Stock Exchange, nor has the Company received any notification that the
Commission, the New York Stock Exchange or the Toronto Stock Exchange is contemplating terminating
such registration or quotation.
(bb) The books, records and accounts of the Company and its subsidiaries accurately, fairly
and reasonably reflect, the transactions in, and dispositions of, the assets of, and the results of
operations of, the Company and its subsidiaries. The Company and each of its subsidiaries maintain
a system of internal accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management’s general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of consolidated financial statements
in accordance with generally accepted accounting principles and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management’s general or specific
authorization and (iv) the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any differences.
(cc) The Company and its subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are customary in the businesses
in which they are engaged or propose to engage after giving effect to the transactions described in
the Prospectus, and such policies are in full force and effect.
(dd) Each approval, consent, order, authorization, designation, declaration or filing of, by
or with any regulatory, administrative or other governmental body
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necessary in connection with the
execution and delivery by the Company of this Agreement and the consummation of the transactions
herein contemplated required to be obtained or performed by the Company (except such additional
steps as may be required by the National Association of Securities Dealers, Inc. (the “NASD”) or
may be necessary to qualify the Shares for public offering by the Underwriters under the state
securities or Blue Sky laws) has been obtained or made and is in full force and effect.
(ee) There are no affiliations with the NASD among the Company’s officers, directors or, to
the best of the knowledge of the Company, any five percent or greater stockholder of the Company,
except as set forth in the Registration Statement, the Pricing Disclosure Package, the Prospectus
or otherwise disclosed in writing to the Underwriters.
(ff) Except (A) as disclosed in the Company’s filings with the Commission under the Exchange
Act and (B) as would not, individually or in the aggregate, have a Material Adverse Effect, (i)
each of the Company and each of its subsidiaries is in compliance in all material respects with all
rules, laws and regulation relating to the use, treatment, storage and disposal of toxic substances
and protection of health or the environment (“Environmental Law”) which are applicable to its
business; (ii) neither the Company nor its subsidiaries has received any notice from any
governmental authority or third party of an asserted claim under Environmental Laws; (iii) each of
the Company and each of its subsidiaries has received all permits, licenses or other approvals
required of it under applicable Environmental Laws to conduct its business and is in compliance
with all terms and conditions of any such permit, license or approval; (iv) to the Company’s
knowledge, no facts currently exist that will require the Company or any of its subsidiaries to
make future material capital expenditures to comply with Environmental Laws; and (v) no property
which is or has been owned, leased or occupied by the Company or its subsidiaries has been
designated as a Superfund site pursuant to the Comprehensive Environmental Response, Compensation
of Liability Act of 1980, as amended (42 U.S.C. Section 9601, et. seq.) (“CERCLA 1980”) or
otherwise designated as a contaminated site under applicable state or local law. Neither the
Company nor any of its subsidiaries has been named as a “potentially responsible party” under the
CERCLA 1980.
(gg) In the ordinary course of its business, the Company periodically reviews the effect of
Environmental Laws on the business, operations and properties of the Company and its subsidiaries,
in the course of which the Company identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws, or any permit, license or approval,
any related constraints on operating activities and any potential liabilities to third parties).
(hh) The Company is not and, after giving effect to the offering and sale of the Shares and
the application of proceeds thereof as described in the Prospectus, will not be an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.
(ii) The Company or any other person affiliated with or acting on behalf of the Company
including, without limitation, any officer, director, employee, or agent of the
10
Company or any
stockholder thereof acting on behalf of the Company or its subsidiaries, has not, directly or
indirectly, while acting on behalf of the Company or its subsidiaries (i) used any corporate funds
for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political
activity; (ii) made any unlawful payment to foreign or domestic government officials or employees
or to foreign or domestic political parties or campaigns from corporate funds; (iii) violated any
provision of the Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any other unlawful
payment.
(jj) Except as described in the Pricing Disclosure Package and the Prospectus or in the
documents incorporated by reference into the Pricing Disclosure Package or the Prospectus, the
Company has not sold or issued any shares of, or securities convertible into, Common Stock or a
class similar to Common Stock during the six-month period preceding the date of the Prospectus,
including any sales pursuant to Rule 144A under, or Regulations D or S, of the Securities Act,
other than shares issued pursuant to employee benefit plans, qualified stock options plans or other
employee compensation plans or pursuant to outstanding options, rights or warrants.
(kk) The Company has fulfilled its obligations, if any, under the minimum funding standards of
Section 302 of the U.S. Employee Retirement Income Security Act of 1974 (“ERISA”) and the
regulations and published interpretations thereunder with respect to each “plan” as defined in
Section 3(3) of ERISA and such regulations and published interpretations in which its employees are
eligible to participate and each such plan is in compliance in all material respects with the
presently applicable provisions of ERISA and such regulations and published interpretations. No
“Reportable Event” (as defined in 12 ERISA) has occurred with respect to any “Pension Plan” (as
defined in ERISA) for which the Company could have any liability.
(ll) Each of the Company, its directors and officers has not distributed and will not
distribute prior to the later of (i) the Closing Date and (ii) completion of the distribution of
the Shares, any offering material in connection with the offering and sale of the Shares other than
any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, the Registration
Statement and any Issuer Free Writing Prospectus to which the Representatives have consented in
accordance with Section 4(m)(i) herein.
(mm) There is and has been no failure on the part of the Company to comply in all material
respects with any provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations
promulgated in connection therewith that are effective, including Sections 302 and 906 related to
certifications, except for any provisions with which the Company is not currently required to
comply.
2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties and covenants herein contained, and
subject to the conditions herein set forth, the Company agrees to sell to the Underwriters and each
Underwriter agrees, severally and not jointly, to purchase, at a price of
$5.32 per share (the “Purchase Price”), the number of Firm Shares set forth opposite such
Underwriter’s name on Schedule I hereto.
11
(b) The Shares to be purchased by the Underwriters hereunder will be represented by
certificates which will be deposited by or on behalf of the Company with The Depository Trust
Company in New York or its designated custodian (“DTC”). The Company will deliver the Shares to
you for your account, against payment by or on behalf of you of the Purchase Price therefor by wire
transfer of Federal (same-day) funds to the account specified by the Company to you at least
forty-eight hours in advance, by causing DTC to credit the Shares to your account at DTC. The
Company will cause the Shares to be made available to you for checking at least twenty-four hours
prior to the Initial Closing Date (as defined below) at the office of DTC or its designated
custodian (the “Designated Office”). The time and date of such delivery and payment shall be, with
respect to the Firm Shares, 10:00 a.m., New York City time, on March 22, 2006 or such other time
and date as the Representatives and the Company may agree upon in writing (the “Initial Closing
Date”).
(c) In addition, on the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company hereby grants an option to the
several Underwriters to purchase the Option Shares at the Purchase Price. The option granted
hereby may be exercised in whole or in part by giving written notice (i) at any time before the
Initial Closing Date and (ii) only once thereafter within 30 days after the date of this Agreement,
by the Representatives to the Company setting forth the number of Option Shares as to which the
several Underwriters are exercising the option and the time and date at which such certificates are
to be delivered. The time and date at which certificates for Option Shares are to be delivered
shall be determined by the Representatives but shall not be earlier than three nor later than 10
full Business Days after the exercise of such option, nor in any event prior to the Initial Closing
Date (such time and date being herein referred to as the “Option Closing Date”). If the date of
exercise of the option is three or more days before the Initial Closing Date, the notice of
exercise shall set the Initial Closing Date as the Option Closing Date. The number of Option
Shares to be purchased by each Underwriter shall be in the same proportion to the total number of
Option Shares being purchased as the number of Firm Shares being purchased by such Underwriter
bears to the total number of Firm Shares, adjusted by you in such manner as to avoid fractional
shares. The option with respect to the Option Shares granted hereunder may be exercised only to
cover over-allotments in the sale of the Firm Shares by the Underwriters. The Representatives of
the several Underwriters, may cancel such option at any time prior to its expiration by giving
written notice of such cancellation to the Company. To the extent, if any, that the option is
exercised, payment for the Option Shares shall be made on the Option Closing Date in Federal (same
day funds) through the facilities of DTC, New York drawn to the order of the Company. As used in
this Agreement, the term “Closing Date” means the Initial Closing Date and, if applicable, the
Option Closing Date.
(d) The documents to be delivered at each Closing Date by or on behalf of the parties hereto
pursuant to Section 6 hereof, including the cross-receipt for the Shares and any additional
documents requested by the Representatives pursuant to Section 6(k) hereof, will be delivered at
the offices of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the
"Closing Location”), and the Shares will be delivered at the Designated Office, all at such Closing
Date. A meeting will be held at the Closing Location at 1:00 p.m.,
New York City time, on the Business Day next preceding such Closing Date, at which meeting the
final drafts of the documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. As used in this Agreement, “Business Day” means a
12
day on which
the New York Stock Exchange is open for trading and on which banks in New York are open for
business and are not permitted by law or executive order to be closed.
(e) The Company acknowledges and agrees that the Underwriters, in providing investment banking
services to the Company in connection with the offering of the Shares, including in acting pursuant
to the terms of this Agreement, have acted and are acting as independent contractors on an arm’s
length basis and not as fiduciaries and the Company does not intend the Underwriters to act in any
capacity other than independent contractor, including as a fiduciary or in any other position of
higher trust. The Company shall be responsible for making its own independent investigation and
appraisal of the transactions contemplated by this Agreement and the Underwriters shall have no
responsibility or liability with respect to such investigation and appraisal.
3. Offering by the Underwriters.
It is understood that the several Underwriters are to make a public offering of the Firm
Shares as soon as the Representatives deem it advisable to do so. The Firm Shares are to be
initially offered to the public at the principal amount set forth in the Prospectus. The
Representatives may from time to time thereafter change the public offering price and other selling
terms.
4. Covenants of the Company and the Underwriters.
The Company covenants and agrees as follows:
(a) The Company will use its best efforts to cause the Registration Statement, if not
effective at the time of execution of this Agreement, and any amendments thereto, to become
effective as promptly as possible. The Company shall prepare the Prospectus in a form reasonably
approved by the Representatives and file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission’s close of business on the second Business Day
following the execution and delivery of this Agreement, or, if applicable, such earlier time as may
be required by the Rules.
(b) The Company shall promptly advise the Representatives in writing (A) when any
post-effective amendment to the Registration Statement shall have become effective or any
supplement to the Prospectus shall have been filed, (B) of any request by the Commission for any
amendment of the Registration Statement, any Preliminary Prospectus or the Prospectus or for any
additional information, (C) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus or the institution or
threatening of any proceeding for that purpose and (D) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company
shall not file any amendment of the Registration Statement or distribute
any amendment or supplement to the Pricing Disclosure Package or the Prospectus or any
document incorporated by reference in the Registration Statement unless the Company has furnished
the Representatives a copy for their review prior to filing and shall not file any such
13
proposed
amendment or supplement to which the Representatives reasonably object. The Company shall use its
best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(c) If, at any time when a prospectus relating to the Shares is required to be delivered under
the Securities Act or the Rules, any event occurs as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend or supplement the
Prospectus to comply with the Securities Act or the Rules, the Company promptly shall prepare and
file with the Commission, subject to the second sentence of Section 4(b), an amendment or
supplement which shall correct such statement or omission or an amendment which shall effect such
compliance.
(d) The Company shall make generally available to its security holders and to the
Representatives as soon as practicable, but not later than 45 days after the end of the 12 month
period beginning at the end of the fiscal quarter of the Company during which the Effective Date
occurs (or 90 days if such 12 month period coincides with the Company’s fiscal year), an earning
statement (which need not be audited) of the Company, covering such 12 month period, which shall
satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules.
(e) The Company shall reasonably cooperate with the Representatives and their counsel in
endeavoring to qualify the Shares for offer and sale in connection with the offering under the laws
of such jurisdictions as the Representatives may designate and shall maintain such qualifications
in effect so long as required for the distribution of the Shares; provided, however, that the
Company shall not be required in connection therewith, as a condition thereof, to qualify as a
foreign corporation or to execute a general consent to service of process in any jurisdiction or
subject itself to taxation as doing business in any jurisdiction.
(f) The Company, during the period when the Prospectus is required to be delivered under the
Securities Act and the Rules or the Exchange Act, will file all reports and other documents
required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act
within the time periods required by the Exchange Act and the regulations promulgated thereunder.
(g) Without the prior written consent of Deutsche Bank Securities Inc. and ▇.▇. ▇▇▇▇▇▇
Securities Inc., for a period of 90 days after the date of this Agreement, the Company and the
individuals listed on Schedule IV hereto shall not issue, sell or register with the Commission
(other than on Form S-8 or on any successor form), or otherwise dispose of, directly or indirectly,
any equity securities of the Company (or any securities convertible into, exercisable for or
exchangeable for equity securities of the Company), except for (A) those shares of Common Stock set
forth in the Lockup Agreement, (B) the issuance of shares pursuant to the Company’s existing stock
option plan or bonus plan as described in the Registration
Statement and the Prospectus, and (C) the issuance of shares of the Company’s Common Stock
upon the exercise or conversion of securities of the Company outstanding on the date hereof and
disclosed in the Registration Statement or Prospectus. In the event that during this period, (A)
14
any shares are issued pursuant to the Company’s existing stock option plan or bonus plan that are
exercisable during such 90-day period or (B) any registration is effected on Form S-8 or on any
successor form relating to shares that are exercisable during such 90-period, the Company shall use
its best efforts to obtain the written agreement of such grantee or purchaser or holder of such
registered securities that, for a period of 90 days after the date of this Agreement, such person
will not, without the prior written consent of Deutsche Bank Securities Inc. and ▇.▇. ▇▇▇▇▇▇
Securities Inc., offer for sale, sell, distribute, grant any option for the sale of, or otherwise
dispose of, directly or indirectly, or exercise any registration rights with respect to, any shares
of Common Stock (or any securities convertible into, exercisable for, or exchangeable for, any
shares of Common Stock) owned by such person.
(h) During a period of five years from the effective date of the Registration Statement to the
extent not otherwise available on the Commission’s website (currently available at
▇▇▇▇://▇▇▇.▇▇▇.▇▇▇), to furnish to you copies of all reports or other communications (financial or
other) furnished to stockholders, and to deliver to you as soon as they are available, copies of
any reports and financial statements furnished to or filed with the Commission or any national
securities exchange on which the Shares or any class of securities of the Company is listed;
(i) On or before completion of this offering, the Company shall make all filings required
under applicable securities laws and by each of the New York Stock Exchange (including any required
registration under the Exchange Act) and the Toronto Stock Exchange in connection with the
transactions contemplated by this Agreement and the Shares;
(j) Prior to the Closing Date, the Company will issue no press release or other communications
directly or indirectly and hold no press conference with respect to the Company, the condition,
financial or otherwise, or the earnings, business affairs or business prospects of any of them, or
the offering of the Shares without the prior written consent of Deutsche Bank Securities Inc. and
▇.▇. ▇▇▇▇▇▇ Securities Inc. unless in the judgment of the Company and its counsel, and after
notification to the Representatives, such press release or communication is required by law;
(k) The Company shall (A) furnish to the Underwriters and counsel for the Underwriters,
without charge, signed copies of the Registration Statement, each Preliminary Prospectus, the
Pricing Prospectus and the Prospectus (including all exhibits thereto and amendments thereof) and
all amendments thereof (i) prior to 10:00 a.m. New York City Time on the Business Day next
succeeding date of this Agreement, (ii) so long as delivery of a prospectus by an underwriter or
dealer may be required by the Securities Act or the Rules in connection with the sale and issuance
of the Shares (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act)
and (B) if at such time any event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Securities Act) is delivered, not
misleading, or, if for any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to
15
notify you and upon your request to file such document and to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many written and electronic copies as you may
from time to time reasonably request of an amended Prospectus or a prospectus supplement which will
correct such statement or omission or effect such compliance. If applicable, the copies of the
Registration Statement, each Preliminary Prospectus, the Pricing Prospectus and Prospectus and each
amendment and supplement thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to
the extent permitted by Regulation S-T;
(l) The Company will apply the net proceeds from the offering of the Shares in the manner set
forth under “Use of Proceeds” in the Prospectus;
(m) The Company will (i) not without the prior consent of Deutsche Bank Securities Inc. and
▇.▇. ▇▇▇▇▇▇ Securities Inc., make any offer relating to the Shares that would constitute a “free
writing prospectus” as defined in Rule 405 under the Securities Act, provided that the prior
written consent of Deutsche Bank Securities Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc. shall be deemed to
have been given in respect of the Issuer Free Writing Prospectuses included in Schedule II hereto;
(any such free writing prospectus the use of which has been consented to by the Company and
Deutsche Bank Securities Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc. is referred to herein as a “Permitted
Free Writing Prospectus”); (ii) comply with the requirements of Rules 163, 164 and 433 under the
Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the
Commission or record keeping and legending; (iii) treat each Permitted Free Writing Prospectus as
an Issuer Free Writing Prospectus; and (iv) not take any action that would result in an Underwriter
or the Company being required to file with the Commission pursuant to Rule 433(d) under the
Securities Act a free writing prospectus prepared by or on behalf of such Underwriter that such
Underwriter otherwise would not have been required to file;
(n) The Company will, if at any time following issuance of an Issuer Free Writing Prospectus
any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would
conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, (i) give prompt notice thereof to the Representatives (ii) and, if
requested by the Representatives, prepare and furnish without charge to each Underwriter an Issuer
Free Writing Prospectus or other document which will correct such conflict, statement or omission;
provided, however, that this representation and warranty shall not apply to any statements or
omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriters through the Representatives
expressly for use therein;
(o) If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial
effective date of the Registration Statement, any of the Shares remain unsold by the Underwriters,
the Company will, prior to the Renewal Deadline file, if it has not
already done so and is eligible to do so, a new automatic shelf registration statement
relating to the Shares, in a form reasonably satisfactory to any Representative. If the Company is
no longer eligible to file an automatic shelf registration statement, the Company will, prior to
the Renewal
16
Deadline, if it has not already done so, file a new shelf registration statement
relating to the Shares, in a form reasonably satisfactory to the Representatives, and will use
commercially reasonable efforts to cause such registration statement to be declared effective
within 180 days after the Renewal Deadline. The Company will take all other commercially
reasonable action necessary or appropriate to permit the public offering and sale of the Shares to
continue as contemplated in the expired registration statement. References herein to the
Registration Statement shall include such new automatic shelf registration statement or such new
shelf registration statement, as the case may be.
(p) The Company will pay the required filing fees to the Commission relating to the Shares
within the time required by Rule 456(b)(1) under the Securities Act without regard to the proviso
therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act.
The Underwriters, severally and not jointly, covenant and agree as follows:
(q) Each Underwriter will not include any “issuer information” (as defined in Rule 433) in any
“free writing prospectus” (as defined in Rule 405) used or referred to by such Underwriter without
the prior written consent of the Company.
5. Costs and Expenses.
The Company will pay, or reimburse if paid by the Representatives all costs, expenses and fees
incident to the performance of the obligations of the Company as provided under this Section and
Sections 8 and 10 of this Agreement, including, without limiting the generality of the foregoing,
the following: accounting fees of the Company; the fees and disbursements of counsel for the
Company; the cost of printing and delivering to, or as requested by, the Underwriters copies of the
Registration Statement, any Preliminary Prospectuses, the Pricing Prospectus, any Issuer Free
Writing Prospectus, the Prospectus, this Agreement, the Underwriters’ Selling Memorandum, the
Underwriters’ Invitation Letter, the Blue Sky Survey and any supplements or amendments thereto; the
filing fees of the Commission; the filing fees and expenses (including legal fees and
disbursements) incident to securing any required review by the NASD of the terms of the sale of the
Shares; any fees incurred in connection with the listing on the New York Stock Exchange or the
Toronto Stock Exchange of the Shares; the expenses, including the reasonable fees and disbursements
of counsel for the Underwriters, incurred in connection with the qualification of the Shares under
State securities or Blue Sky laws; and all other costs and expenses of the Company incident to the
performance of its obligations hereunder which are not otherwise specifically provided for in this
Section. The Company shall not, however, be required to pay for any of the Underwriters’ expenses
(other than those related to qualification under NASD regulation and State securities or Blue Sky
laws) except that, if this Agreement shall not be consummated because the conditions in Section 6
hereof are not satisfied, or because this Agreement is terminated by the Representatives pursuant
to Section 10 hereof, or by reason of any failure, refusal or inability on the part of the Company
to perform any undertaking or satisfy any condition of this Agreement or to comply with any of
the terms hereof on its part to be performed, unless such failure, refusal or inability is due
primarily to the default or omission of any Underwriter, the Company shall reimburse each
Underwriter for reasonable out-of-pocket expenses, including reasonable fees and disbursements
17
of
counsel, reasonably incurred in connection with investigating, marketing and proposing to market
the Shares or in contemplation of performing their obligations hereunder; but the Company shall not
in any event be liable to any of the Underwriters for damages on account of loss of anticipated
profits from the sale by them of the Shares.
6. Conditions of Obligations of the Underwriters.
The several obligations of the Underwriters to purchase the Firm Shares on the Initial Closing
Date and the Option Shares, if any, on the Option Closing Date are subject to each of the following
terms and conditions:
(a) Notification that all filings related to the Registration Statement, the Prospectus, and
the offering of the Shares required by Rule 424 of the Rules shall have been made within the
applicable time period and that all filings related to each Issuer Free Writing Prospectus,
including filing all material required to be filed by the Company pursuant to Rule 433 under the
Securities Act, shall have been made within the applicable time period;
(b) No order preventing or suspending the use of any Prospectus or any Issuer Free Writing
Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the
Registration Statement shall be in effect and no proceedings for such purpose shall be pending
before or threatened by the Commission, and any requests for additional information on the part of
the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall
have been complied with to the satisfaction of the Commission and the Representatives. If the
Company has elected to rely upon Rule 430A, Rule 430A information previously omitted from the
effective Registration Statement pursuant to Rule 430A shall have been transmitted to the
Commission for filing pursuant to Rule 424(b) within the prescribed time period and the Company
shall have provided evidence satisfactory to the Representatives of such timely filing, or a
post-effective amendment providing such information shall have been promptly filed and declared
effective in accordance with the requirements of Rule 430A;
(c) The representations and warranties of the Company contained in this Agreement and in the
certificates delivered pursuant to Section 6(d) shall be true and correct as of the Applicable Time
and each Closing Date, as if made on such date. The Company shall have performed all covenants and
agreements and satisfied all the conditions contained in this Agreement required to be performed or
satisfied by them at or before each Closing Date;
(d) The Representatives shall have received on each Closing Date,
(i) a certificate, addressed to the Representatives and dated each
Closing Date, of the chief executive or chief operating officer and the
chief financial officer or chief accounting officer of the Company, to the
effect that: (1) the representations, warranties and agreements of the
Company in this Agreement were true and correct when made and are true
and correct as of each Closing Date; (2) the Company has performed all
covenants and agreements and satisfied all conditions contained herein; (3)
they have carefully examined the Registration Statement and, in their
18
opinion (A) as of the Effective Date, the Registration Statement did not
include any untrue statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading and (B) since the Effective Date no event
has occurred which should have been set forth in a supplement or otherwise
required an amendment to the Registration Statement; (4) they have carefully
examined the Prospectus and, in their opinion (A) as of the date of the
Prospectus and the Closing Date, the Prospectus did not include any untrue
statement of a material fact and did not omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading
and (B) since the date of the Prospectus, no event has occurred which should
have been set forth in a supplement or otherwise required an amendment to
the Prospectus; (5) they have carefully examined the Pricing Disclosure
Package and, in their opinion (A) as of the Applicable Time and the Closing
Date, the Pricing Disclosure Package did not include any untrue statement of
a material fact and did not omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading and (B) since
the Applicable Time, no event has occurred which should have been set forth
in a supplement or otherwise required an amendment to the Pricing Disclosure
Package; (6) no stop order suspending the effectiveness of the Registration
Statement has been issued and, to their knowledge, no proceedings for that
purpose have been instituted or are pending under the Securities Act; and
(7) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Representatives and ▇▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Company, are entitled to rely upon such
certificate in connection with the opinions given by such firms pursuant to
this Agreement;
(ii) a certificate, addressed to the Representatives and dated each
Closing Date, of the chief financial officer or chief accounting officer of
the Company, in a form reasonably acceptable to the Representatives, to the
effect that certain information contained in the Pricing Disclosure Package
and the Prospectus is correct in all material respects; and
(iii) certificates, addressed to the Representatives and dated each
Closing Date, of each of the managers of operations of each of the Company’s
mines, in a form reasonably acceptable to the Representatives, to the effect
that, all mines have in place and currently in effect all material permits
(including, e.g., environmental permits) licenses, consents, approvals,
determinations and other authorizations, whether governmental or private,
necessary for the mine to conduct fully its business and operations, are in
full compliance with all laws, regulations,
codes, and other requirements applicable to the conduct of its business
and operations and is not subject of any investigation or review by any
Federal, state or local regulatory agency, and no mine has received in the
last 24
19
months any notice from any governmental or other authority that it
is in violation or non-compliance with any licenses, permits, or other
authorizations;
(e) The Representatives shall have received, at the time this Agreement is executed and on
each Closing Date a signed letter from KPMG LLP addressed to the Representatives and dated,
respectively, the date of this Agreement and each Closing Date, in form and substance reasonably
satisfactory to the Representatives containing statements and information of the type ordinarily
included in accountants’ “comfort letters” to underwriters with respect to the consolidated
financial statements and certain financial information contained in the Registration Statement and
the Prospectus;
(f) The Representatives shall have received on each Closing Date from ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇
LLP, counsel for the Company, (i) an opinion, addressed to the Representatives and dated each
Closing Date, to the effect set forth in Annex II and (ii) a separate letter addressed to the
Representatives and dated each Closing Date, to the effect set forth in Annex III;
(g) The Representatives shall have received on each Closing Date from ▇▇▇▇▇ ▇▇▇▇, Esq.,
Secretary and General Counsel of the Company, an opinion, addressed to the Representatives, and
dated each Closing Date, to the effect set forth in Annex IV;
(h) The Representatives shall have received on each Closing Date from foreign counsel of the
Company, opinions reasonably satisfactory in form and substance to the Representatives and their
counsel;
(i) All proceedings taken in connection with the sale of the Shares as herein contemplated
shall be reasonably satisfactory in form and substance to the Representatives and its counsel and
the Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP a favorable letter,
addressed to the Representatives and dated each Closing Date with respect to the Shares, the
Registration Statement, the Pricing Disclosure Package and the Prospectus, and such other related
matters as the Representatives may reasonably request, and the Company shall have furnished to
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters;
(j) The Representatives shall have received copies of the Lockup Agreements, in the form set
forth in Annex I hereto, executed by each entity or person listed therein;
(k) The Company shall have furnished or caused to be furnished to the Representatives such
further certificates or documents as the Representatives shall have reasonably requested;
(l) The Company shall have complied with the provisions of Section 4(k) hereof with respect to
the furnishing of prospectuses on the Business Day next succeeding the date of this Agreement; and
20
(m) On or after the Applicable Time no downgrading, or placement on any watch list for
possible downgrading, in the rating of any of the Company’s debt securities by any “nationally
recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the
Exchange Act) shall have occurred.
If any of the conditions hereinabove provided for in this Section 6 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, the obligations of the
Underwriters hereunder may be terminated by the Representatives by notifying the Company of such
termination in writing or by telegram at or prior to each Closing Date.
In such event, the Company and the Representatives shall not be under any obligation to each
other (except to the extent provided in Sections 5 and 8 hereof).
7. Conditions of the Obligations of the Company.
The obligations of the Company to sell and deliver the portion of the Shares required to be
delivered as and when specified in this Agreement are subject to the conditions that at each
Closing Date no stop order suspending the effectiveness of the Registration Statement shall have
been issued and in effect or proceedings therefor initiated or threatened.
8. Indemnification.
(a) The Company agrees:
(i) to indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any losses, claims,
damages or liabilities to which an Underwriter or any such controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof) arise
out of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary Prospectus,
the Pricing Prospectus, the Prospectus or any amendment or supplement thereto, any
Issuer Free Writing Prospectus or any “issuer information” filed or required to be
filed pursuant to Rule 433(d) under the Securities Act (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the circumstances
under which they were made or (iii) any act or failure to act, or any alleged act or
failure to act by the Underwriters in connection with, or relating in any manner to,
the Shares or the offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage, liability or action arising out of or based
upon matters covered by clause (i) or (ii) above (provided, that the Company shall
not be liable under this clause (iii) to the extent that it is determined in a final
judgment by a court of
competent jurisdiction that such loss, claim, damage, liability or action
resulted directly from any such acts or failures to act undertaken or omitted to be
taken by the Underwriters through their gross negligence or willful misconduct);
provided,
21
however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement, or omission or alleged omission
made in the Registration Statement, any Preliminary Prospectus, the Pricing
Prospectus, the Prospectus, or such amendment or supplement, or any Issuer Free
Writing Prospectus in reliance upon and in conformity with written information
furnished to the Company by or through the Representatives specifically for use in
the preparation thereof; and
(ii) to reimburse each Underwriter and each such controlling person upon demand
for any legal or other out-of-pocket expenses reasonably incurred by each
Underwriter or such controlling person in connection with investigating or defending
any such loss, claim, damage or liability, action or proceeding or in responding to
a subpoena or governmental inquiry related to the offering of the Shares, whether or
not such Underwriter or controlling person is a party to any action or proceeding.
In the event that it is finally judicially determined that the Underwriters were not
entitled to receive payments for legal and other expenses pursuant to this
subparagraph, the Underwriters will promptly return all sums that had been advanced
pursuant hereto.
(b) Each Underwriter severally and not jointly will indemnify and hold harmless the Company,
each of its directors, each of its officers who have signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of the Securities Act, against any
losses, claims, damages or liabilities to which the Company or any such director, officer, or
controlling person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of
or are based upon (i) any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus, any
Issuer Free Writing Prospectus, the Prospectus or any amendment or supplement thereto, or (ii) the
omission or the alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the circumstances under
which they were made; and will reimburse any legal or other expenses reasonably incurred by the
Company or any such director, officer, or controlling person in connection with investigating or
defending any such loss, claim, damage, liability, action or proceeding; provided, however, that
each Underwriter will be liable in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission has been made in the
Registration Statement, any Preliminary Prospectus, the Pricing Prospectus, any Issuer Free Writing
Prospectus, the Prospectus or such amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by or through the Representatives specifically for use
in the preparation thereof. This indemnity agreement will be in addition to any liability which
such Underwriter may otherwise have.
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to this Section 8, such
person (the “indemnified party”) shall promptly notify the person against whom such indemnity may
be sought (the “indemnifying party”) in writing. No
22
indemnification provided for in Section 8(a),
(b) or (c) shall be available to any party who shall fail to give notice as provided in this
Section 8(d) if the party to whom notice was not given was unaware of the proceeding to which such
notice would have related and was materially prejudiced by the failure to give such notice, but the
failure to give such notice shall not relieve the indemnifying party or parties from any liability
which it or they may have to the indemnified party for contribution or otherwise than on account of
the provisions of Section 8(a), (b) or (c). In case any such proceeding shall be brought against
any indemnified party and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party and shall pay as incurred the fees and disbursements
of such counsel related to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel at its own expense. Notwithstanding the foregoing, the
indemnifying party shall pay as incurred (or within 30 days of presentation) the fees and expenses
of the counsel retained by the indemnified party in the event (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel, (ii) the named
parties to any such proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them or (iii) the indemnifying
party shall have failed to assume the defense and employ counsel acceptable to the indemnified
party within a reasonable period of time after notice of commencement of the action. It is
understood that the indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than
one separate firm for all such indemnified parties. Such firm shall be designated in writing by
you in the case of parties indemnified pursuant to Section 8(a), (b) or (c) and by the Company in
the case of parties indemnified pursuant to Section 8(c). The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent but if settled
with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by reason of such
settlement or judgment. In addition, the indemnifying party will not, without the prior written
consent of the indemnified party, settle or compromise or consent to the entry of any judgment in
any pending or threatened claim, action or proceeding of which indemnification may be sought
hereunder (whether or not any indemnified party is an actual or potential party to such claim,
action or proceeding) unless such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of such claim, action or
proceeding.
(d) To the extent the indemnification provided for in this Section 8 is unavailable to or
insufficient to hold harmless an indemnified party under Section 8(a), (b) or (c) above in respect
of any losses, claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the other
from the offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law then each indemnifying party shall contribute
to such amount paid or payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the Company on
23
the one hand and the Underwriters on the other in connection
with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions or proceedings in respect
thereof), as well as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the Prospectus. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the
Company on the one hand or the Underwriters on the other and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The Company and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 8(e) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable considerations referred to above
in this Section 8(e). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to
above in this Section 8(e) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (e), (i) no Underwriter shall be required
to contribute any amount in excess of the underwriting discounts and commissions applicable to the
Shares purchased by such Underwriter, and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(f) In any proceeding relating to the Registration Statement, any Preliminary Prospectus, any
Issuer Free Writing Prospectus, any Pricing Prospectus, the Prospectus or any supplement or
amendment thereto, each party against whom contribution may be sought under this Section 8 hereby
consents to the jurisdiction of any court having jurisdiction over any other contributing party,
agrees that process issuing from such court may be served upon it by any other contributing party
and consents to the service of such process and agrees that any other contributing party may join
it as an additional defendant in any such proceeding in which such other contributing party is a
party.
(g) Any losses, claims, damages, liabilities or expenses for which an indemnified party is
entitled to indemnification or contribution under this Section 8 shall be paid by the indemnifying
party to the indemnified party as such losses, claims, damages, liabilities or expenses are
incurred. The indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company set forth in this Agreement shall remain operative
and in full force and effect, regardless of (i) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter, the Company, its directors or officers or
any persons controlling the Company, (ii) acceptance of any Shares and payment therefor hereunder,
and (iii) any termination of this Agreement. A successor to any Underwriter, or any person
controlling any Underwriter, or to the Company, its directors or officers, or any
24
person controlling the Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 8.
9. Notices.
All communications hereunder shall be in writing and, except as otherwise provided herein,
will be mailed, delivered, telecopied or telegraphed and confirmed as follows: if to the
Representatives, to Deutsche Bank Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇; Attention: Syndicate Manager, with a copy to Deutsche Bank Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, with a copy, which shall not constitute
notice, to ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇ ▇. Boston, Esq., and if to the Company, to its agent for service as such agent’s address
appears on the cover page of the Registration Statement with a copy to ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
10. Termination.
This Agreement may be terminated by the Representatives by notice to the Company any time
prior to the Initial Closing Date or any Option Closing Date (if different from the Initial Closing
Date and then only as to Option Shares) if any of the following has occurred: (i) since the
respective dates as of which information is given in the Registration Statement and the Prospectus,
any material adverse change or any development involving a prospective material adverse change in
or affecting the earnings, business, management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Company and its subsidiaries taken as a whole, whether
or not arising in the ordinary course of business, (ii) any outbreak or escalation of hostilities
or declaration of war or national emergency or other national or international calamity or crisis
or change in economic or political conditions if the effect of such outbreak, escalation,
declaration, emergency, calamity, crisis or change on the financial markets of the United States
would, in your reasonable judgment, make it impracticable or inadvisable to market the Shares or to
enforce contracts for the sale of the Shares, or (iii) suspension of trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market
or limitation on prices (other than limitations on hours or numbers of days of trading) for
securities on either such exchange, (iv) the enactment, publication, decree or other promulgation
of any statute, regulation, rule or order of any court or other governmental authority which in
your opinion materially and adversely affects or may materially and adversely affect the business
or operations of the Company, (v) the declaration of a banking moratorium by United States or New
York State authorities, (vi) any downgrading, or placement on any watch list for possible
downgrading, in the rating of any of the Company’s debt securities by any “nationally recognized
statistical rating organization” (as defined for purposes of Rule 436(g) under the Exchange Act);
(vii) the suspension of trading of the Company’s Common Stock by the New York Stock Exchange, the
Toronto Stock Exchange, the Commission, or any other governmental authority or, (viii) the taking
of any action by any governmental body or agency in respect of its monetary or fiscal affairs which
in your reasonable opinion has a Material Adverse Effect on the securities markets in the United
States; or as provided in Section 6 of this Agreement.
25
11. Default by Underwriters.
If on a Closing Date, any Underwriter shall fail to purchase and pay for the portion of the
Shares which such Underwriter has agreed to purchase and pay for on such Closing Date (otherwise
than by reason of any default on the part of the Company) the Representatives shall use their
reasonable efforts to procure within 36 hours thereafter one or more of the other Underwriters, or
any others, to purchase from the Company such amounts as may be agreed upon and upon the terms set
forth herein, the Shares which the defaulting Underwriter or Underwriters failed to purchase. If
during such 36 hours the Representatives shall not have procured such other Underwriters, or any
others, to purchase the Shares agreed to be purchased by the defaulting Underwriter or
Underwriters, then (a) if the aggregate number of shares with respect to which such default shall
occur does not exceed 10% of the Shares to be purchased on such Closing Date, the other
Underwriters shall be obligated, severally, in proportion to the respective numbers of Shares which
they are obligated to purchase hereunder, to purchase the Shares which such defaulting Underwriter
or Underwriters failed to purchase, or (b) if the aggregate number of shares of Shares with respect
to which such default shall occur exceeds 10% of the Shares to be purchased on such Closing Date,
the Company or the Representatives will have the right, by written notice given within the next
36-hour period to the parties to this Agreement, to terminate this Agreement without liability on
the part of the non-defaulting Underwriters or of the Company except to the extent provided in
Sections 5 and 8 hereof. In the event of a default by any Underwriter or Underwriters on a Closing
Date, as set forth in this Section 11, such Closing Date may be postponed for such period, not
exceeding seven days, as you, as Representatives, may determine in order that the required changes
in the Registration Statement, the Pricing Disclosure Package or in the Prospectus or in any other
documents or arrangements may be effected. The term “Underwriter” includes any person substituted
for a defaulting Underwriter. Any action taken under this Section 11 shall not relieve any
defaulting Underwriter from liability in respect of any default of such Underwriter under this
Agreement.
12. Successors.
This Agreement has been and is made solely for the benefit of the Underwriters, the Company
and their respective successors, executors, administrators, heirs and assigns, and the officers,
directors and controlling persons referred to herein, and no other person will have any right or
obligation hereunder. No purchaser of any of the Shares from any Underwriter shall be deemed a
successor or assign merely because of such purchase.
13. Information Provided by Underwriters.
The Company and the Underwriters acknowledge and agree that the only information furnished or
to be furnished by any Underwriter to the Company for inclusion in any Prospectus, the Pricing
Prospectus, any Issuer Free Writing Prospectus or the Registration Statement consists of the
information set forth in the third and ninth paragraphs under the caption “Underwriting” in the
Prospectus Supplement.
14. Miscellaneous.
26
The reimbursement, indemnification and contribution agreements contained in this Agreement and
the representations, warranties and covenants in this Agreement shall remain in full force and
effect regardless of (a) any termination of this Agreement, (b) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of the Company or its
directors or officers and (c) delivery of and payment for the Shares under this Agreement.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.
This Agreement shall be governed by, and construed in accordance with, the law of the State of
New York without regard to the conflict of laws provisions thereof.
27
If the foregoing letter is in accordance with your understanding of our agreement, please sign
and return to us the enclosed duplicates hereof, whereupon it will become a binding agreement
between the Company and the several Underwriters in accordance with its terms.
| Very truly yours, | ||||||||||
| COEUR D’▇▇▇▇▇ ▇▇▇▇▇ | ||||||||||
| CORPORATION | ||||||||||
| By | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||||
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||||||
| Title: Chairman and Chief Executive | ||||||||||
| Officer | ||||||||||
| The foregoing Underwriting Agreement | ||||||||||
| is hereby confirmed and accepted as | ||||||||||
| of the date first above written. | ||||||||||
| DEUTSCHE BANK SECURITIES INC. | ||||||||||
| ▇.▇. ▇▇▇▇▇▇ SECURITIES INC. | ||||||||||
| BEAR, ▇▇▇▇▇▇▇ & CO. INC. | ||||||||||
| RBC CAPITAL MARKETS CORPORATION | ||||||||||
| As Representatives of the several | ||||||||||
| Underwriters listed on Schedule I. | ||||||||||
By:
|
Deutsche Bank Securities Inc. | |||||||||
By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | |||||||||
By: |
/s/ ▇▇▇▇ ▇▇▇▇▇▇ | |||||||||
| Authorized Officer | ||||||||||
(Signature Page to Underwriting Agreement)
SCHEDULE I
Schedule of Underwriters
| Number of Firm Shares | ||||
| Underwriter | to be Purchased | |||
Deutsche Bank Securities Inc. |
9,600,000 | |||
▇.▇. ▇▇▇▇▇▇ Securities Inc. |
9,600,000 | |||
Bear, ▇▇▇▇▇▇ & Co. Inc. |
2,400,000 | |||
RBC Capital Markets Corporation |
2,400,000 | |||
Total |
24,000,000 | |||
SCHEDULE II
Issuer Free Writing Prospectuses Included in the Pricing Disclosure Package
None.
SCHEDULE III
Material Other than that Listed on Schedule II Included in the Pricing Disclosure
Package
Package
Pricing Script
Coeur d’▇▇▇▇▇ ▇▇▇▇▇ Corporation
24,000,000 shares of Common Stock
3,600,000 additional shares to cover over-allotment
24,000,000 shares of Common Stock
3,600,000 additional shares to cover over-allotment
Issuer
|
Coeur d’▇▇▇▇▇ ▇▇▇▇▇ Corporation (“Coeur”) | ||||
Public Offering Price
|
$ | 5.60 per share | |||
Underwriting discounts and commissions
|
$ | 0.28 per share | |||
Total Net Proceeds to Coeur after payment
of fees and expenses*
|
$ | 126,980,000.00 | |||
| * | Without giving effect to exercise of the over-allotment option. |
SCHEDULE IV
Parties to Lockup Agreements
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
SCHEDULE V
Jurisdictions of Foreign Qualification
| Company | State of Incorporation | Foreign State Qualification | ||
Coeur d’▇▇▇▇▇ ▇▇▇▇▇ Corporation
|
Idaho | None | ||
▇▇▇▇▇▇▇▇ Mining Corporation
|
Arizona | Michigan | ||
CDE Chilean Mining Corp.
|
Delaware | None | ||
Coeur Alaska, Inc.
|
Delaware | Alaska | ||
Coeur Bullion Corporation
|
Idaho | None | ||
Coeur Explorations, Inc.
|
Idaho | None | ||
Coeur Rochester, Inc.
|
Delaware | Nevada | ||
Coeur Silver Valley, Inc.
|
Delaware | Idaho |
ANNEX I
Form of Lockup Agreement
March __, 2006
Deutsche Bank Securities Inc. |
▇.▇. ▇▇▇▇▇▇ Securities Inc. |
As representatives of the several |
Underwriters named in Schedule I |
attached to the Underwriting Agreement referred to below |
c/o Deutsche Bank Securities Inc. |
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ |
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ |
Re: Offering of Shares of Common Stock of Coeur d’▇▇▇▇▇ ▇▇▇▇▇ Corporation
Ladies & Gentlemen:
The undersigned, a holder of common stock (“Common Stock”) or rights to acquire Common Stock of
Coeur d’▇▇▇▇▇ ▇▇▇▇▇ Corporation (the “Company”), understands that the Company intends to file with
the Securities and Exchange Commission (the “Commission”) on or about March [13], 2006, a
prospectus supplement to its Registration Statement on Form S-3, filed with the Commission on
December 27, 2005 (the “Registration Statement”) for the registration of shares of Common Stock
(the “Offering”). The undersigned further understands that Deutsche Bank Securities Inc. and ▇.▇.
▇▇▇▇▇▇ Securities Inc., as representatives (the “Representatives) of the several underwriters (the
“Underwriters”), are contemplating entering into an Underwriting Agreement with the Company in
connection with the Offering.
In order to induce the Company and the Representatives to enter into the Underwriting Agreement and
to proceed with the Offering, the undersigned agrees, for the benefit of the Company and the
Underwriters (including the Representatives), that should the Offering be effected the undersigned
(along with all of the officers and directors of the Company party to a similar Lockup agreement
with the Representatives listed on Exhibit A hereto, other than the undersigned, the “Other
Parties”), will not, without the prior written consent of Deutsche Bank Securities Inc. and ▇.▇.
▇▇▇▇▇▇ Securities Inc., directly or indirectly, make any offer, sale, assignment, transfer,
encumbrance, contract to sell, grant of an option to purchase or other disposition any Common Stock
or securities convertible into or exchangeable or exercisable for Common Stock (collectively,
“Stock”) beneficially owned (within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as amended) by the undersigned for a period of 90 days subsequent to the date of the
Underwriting Agreement (the “Restriction Period”). Notwithstanding the foregoing, during the
Restriction Period, the undersigned (i) may sell shares of Common Stock beneficially owned (within
the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended) by the undersigned
as of the date hereof or acquired by the undersigned pursuant to the Company’s Executive
Compensation Program or Non-Employee
Directors Stock Option Plan; provided, however, that in no event shall the number of shares of
Stock sold by the undersigned, when added to the number of shares of Stock sold by the Other
Parties, exceed 1,000,000, and (ii) may transfer Stock as a gift or gifts provided that any donee
thereof agrees in writing to be bound by the terms hereof.
The undersigned, whether or not participating in the Offering, confirms that he, she or it
understands that the Underwriters (including the Representatives) and the Company will rely upon
the representations set forth in this agreement in proceeding with the Offering. This agreement
shall be binding on the undersigned and his, her or its respective successors, heirs, personal
representatives and assigns. The undersigned agrees and consents to the entry of stop-transfer
instructions with the Company’s transfer agent against the transfer of Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock held by the undersigned except in
compliance with this agreement.
Very truly yours,
Dated: March ___, 2006
| Signature |
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| Printed Name and Title (if applicable) | ||||
EXHIBIT A
Parties to Lockup Agreement
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