Exhibit 1.1
EXECUTION COPY
$200,000,000 Principal Amount
Coeur
d’Alene Mines Corporation
3.25%
Convertible Senior Notes due 2028
Underwriting Agreement
March 12, 2008
Deutsche
Bank Securities Inc.
As
Representative of the Several
Underwriters Named in Schedule I
c/o
Deutsche Bank Securities Inc.
60 Wall Street, 4th Floor
New York, New York 10005
Ladies
and Gentlemen:
Coeur d’Alene Mines
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. is acting as representative (the
“ Representative ”) $200,000,000 aggregate
principal amount of its 3.25% Convertible Senior Notes due 2028
(the “ Firm Notes ”). The respective amounts of
the Firm Notes to be so purchased by the several Underwriters are
set forth opposite their names in Schedule I hereto. In
addition, the Company has granted the Underwriters an option to
purchase up to an additional $30,000,000 aggregate principal amount
of its 3.25% Convertible Senior Notes due 2028 (the “
Optional Notes ”) as set forth below. The Firm Notes
and the Optional Notes (to the extent the aforementioned option is
exercised) are herein collectively referred to as the “
Notes ”.
The Notes will be issued under an
indenture, dated as of the Firm Notes Closing Date (as defined
herein), among the Company, as issuer, and The Bank of New York, as
Trustee (the " Indenture ”). The Notes will be
convertible into cash, shares of common stock, par value $1.00 per
share of the Company (the “ Common Stock ”) or a
combination thereof at the Company’s election on the terms,
and subject to the conditions, set forth in the Indenture.
The Company has prepared and filed in
conformity with the requirements of 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
Representative. 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) relating to the offer and sale of the Notes. The
term “ Prospectus ” means the Base Prospectus as
amended and supplemented by the final prospectus supplement (the
“ Prospectus Supplement ”), filed pursuant to
Rule 424(b) with the Commission in connection with the proposed
sale of the Notes contemplated by this Agreement. 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 Notes. 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, except
to the extent that any information in any such incorporated
document shall have been superseded by information in any
Preliminary Prospectus or any document subsequently filed on or
before the date hereof that is incorporated by reference. Any
reference herein to the terms “amend,”
“amendment” or “supplement” with respect to
the Registration Statement, any Preliminary Prospectus 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
hereof and prior to the termination of the offering of the Notes by
the Underwriters, and deemed to be incorporated therein by
reference. The term “ Applicable Time ” means
8:45 a.m., New York City time, on March 13, 2008.
The Company understands that the
Underwriters propose to make a public offering of the Notes, as set
forth in and pursuant to the Pricing Disclosure Package and the
Prospectus.
The Company hereby confirms that the
Underwriters and dealers have been authorized to distribute or
cause to be distributed 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
Underwriters).
In consideration of the mutual
agreements contained herein and of the interests of the parties in
the transactions contemplated hereby, the parties hereto agree as
follows:
1. Representations and
Warranties of the Company . The Company represents and warrants
to each of the Underwriters as of the date hereof 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 Notes 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 the Base Prospectus, for
registration under the Securities Act of the offering and sale of
the Notes. 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, the
Rules and the Trust Indenture Act of 1939, as amended (the “
Trust Indenture Act ”) and (ii) did not or will
not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading. When any
related Preliminary Prospectus included in the Pricing Disclosure
Package 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 (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 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 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 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 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 EDGAR, 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 furnished in writing by any of the
Underwriters through the Representative 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
Representative 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 Notes 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.
(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 any Preliminary Prospectus,
the Pricing Prospectus or 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, as amended or superseded
by documents subsequently filed on or before the date hereof that
are incorporated by reference therein, 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 contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, 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 necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(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 or incorporated by reference
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 Company’s consolidated financial
statements set forth in the Prospectus. The pro forma financial
statements and other pro forma financial information included or
incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Prospectus present fairly the
information shown therein, have been prepared in accordance with
the Commission’s rules and guidelines with respect to pro
forma financial statements, have been properly compiled on the pro
forma bases described therein, and, in the opinion of the Company,
the assumptions used in the preparation thereof are reasonable and
the adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein. 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 of the Exchange
Act and Item 10 of Regulation S-K of the Commission. The
Company and its subsidiaries do not have any material liabilities
or obligations, direct or contingent (including any off-balance
sheet obligations or any “variable interest entities”
within the meaning of Financial Accounting Standards Board
Interpretation No. 46), not disclosed in the Registration
Statement, the Pricing Disclosure Package and the Prospectus. There
are no financial statements (historical or pro forma) that are
required to be included or incorporated in the Registration
Statement, the Pricing Disclosure Package or the Prospectus that
are not included or incorporated as required.
(h) To
the best of the Company’s knowledge after due inquiry:
(i) the consolidated financial statements of each Bolnisi Gold
NL (“ Bolnisi ”) and Palmarejo Silver and Gold
Corporation (“ Palmarejo ”) (including all notes
and schedules thereto) incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus presented fairly in accordance with Canadian generally
accepted accounting principles and Australian equivalents to
International Financial Reporting Standards, in all material
respects, the financial position of Bolnisi and Palmarejo and their
consolidated subsidiaries as at the dates indicated and the
statement of operations, stockholders’ equity and cash flows
of Bolnisi and Palmarejo and their consolidated subsidiaries for
the periods specified; (ii) such consolidated financial
statements and related schedules and notes thereto were prepared in
conformity with Canadian generally accepted accounting principles
and Australian equivalents to International Financial Reporting
Standards, consistently applied throughout the periods involved;
and (iii) such consolidated financial statements and related
schedules and notes thereto comply with the Securities Act and the
Rules.
(i) KPMG
LLP, who has certified certain of the Company’s financial
statements filed with the Commission as part of, or incorporated by
reference in, the Registration Statement, the Pricing Disclosure
Package and the Prospectus, is an independent registered public
accounting firm with respect to the Company and its subsidiaries
within the meaning of the Securities Act and the Rules and the
Public Company Accounting Oversight Board (United States) (the
“PCAOB”).
(j) KPMG,
who has certified certain of Bolnisi’s financial statements
filed with the Commission as part of, or incorporated by reference
in, the Registration Statement, the Pricing Disclosure Package and
the Prospectus, is an independent registered public accounting firm
with respect to Bolnisi’s and the Company and its
subsidiaries within the meaning of the Securities Act and the Rules
and the PCAOB.
(k) KPMG
LLP Chartered Accountants, who has certified certain of
Palmarejo’s financial statements filed with the Commission as
part of, or incorporated by reference in, the Registration
Statement, the Pricing Disclosure Package and the Prospectus, is an
independent registered public accounting firm with respect to
Palmarejo’s and the Company and its subsidiaries within the
meaning of the Securities Act and the Rules and the PCAOB.
(l) 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 (to the extent good standing
is applicable in such jurisdiction) under the laws of its
respective jurisdiction of incorporation or organization. Each of
the Company and each Significant Subsidiary is duly qualified to do
business and is in good standing (to the extent good standing is
applicable in such jurisdiction) 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 which reasonably would be
expected to result in a Material Adverse Effect.
(m) 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
reasonably be expected to result in 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 or any of its subsidiaries, as the case may be,
thereunder, except for such failures to fulfill or perform any
material obligation or such revocations or terminations or other
impairments that would not
reasonably be expected to result in a Material Adverse Effect.
Except as may be required under the Securities Act and state and
foreign blue sky laws, no other Permits are required to enter into,
deliver and perform this Agreement, to issue and sell the Notes and
to issue shares of Common Stock, if any, issuable upon conversion
of the Notes.
(n) 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, except where the failure to own or
possess any of the foregoing would not reasonably be expected to
result in a Material Adverse Effect. 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 that reasonably would be expected to
result in a Material Adverse Effect.
(o) 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 material 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) for
any failure to have such title or for any such liens, encumbrances,
claims, security interests and defects that do not materially
affect the value of such property to the Company and its
subsidiaries, do not materially interfere with the use made or
proposed to be made of such property by the Company and its
subsidiaries and would not reasonably be expected to result in a
Material Adverse Effect. All material 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 for
any failure to have such lease or for any such liens, encumbrances,
claims, security interests and defects that do not materially
interfere with the use made or proposed to be made of such property
by the Company and its subsidiaries and would not reasonably be
expected to result in a Material Adverse Effect.
(p) With
respect to information set forth or incorporated by reference in
the Pricing Disclosure Package and the Offering Memorandum:
(a) information relating to the estimates of mineral reserves
and mineral resources has been reviewed and verified by the Company
or independent consultants to the Company; (b) the mineral
reserve and mineral resource information has been prepared in
accordance with National Instrument 43-101 — “Standards
of Disclosure for Mineral Projects” by or under the
supervision of a qualified person as defined therein; (c) the
method of estimating the mineral reserves and mineral resources has
been validated by mining experience; (d) the information upon which
the estimates of mineral reserves and mineral resources was based
was, at the time of the delivery thereof, complete and accurate in
all material respects; and (e) there have been no material
changes to such information since the date of delivery or
preparation thereof.
(q) 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, would
reasonably be expected to result in 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.
(r) Since
the respective dates as of which information is given in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus, except as described therein or contemplated thereby,
(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 reasonably be expected to result in
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 reasonably result in 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 material 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
material 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.
(s) 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 complies in all material
respects with the applicable requirements of the Securities Act and
the Rules and accurately summarizes the terms of the underlying
contract, document or other agreement purported to be described
therein. Neither the Company nor any of its subsidiaries, if a
subsidiary is a 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 reasonably be expected to result in 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 reasonably be expected to
result in a Material Adverse Effect.
(t) Neither
the Company nor any of its subsidiaries is in violation of any term
or provision of (i) its charter or by-laws or (ii) any
franchise, license, permit, judgment, decree, order, statute, rule
or regulation, where, solely with respect to clause (ii), the
consequences of
such
violation, individually or in the aggregate, would reasonably be
expected to result in a Material Adverse Effect.
(u) Neither
the execution, delivery or 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 Notes and the issuance of shares of
Common Stock, if any, issuable upon conversion of the Notes) 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.
(v) The
Company has an authorized capitalization as set forth in the
Pricing Disclosure Package and the Prospectus, and all the issued
shares of capital stock of the Company have been duly authorized
and validly issued and are fully paid and nonassessable. Except as
disclosed in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, 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 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 of
Common Stock issuable upon conversion of the Notes have been duly
authorized and reserved for issuance and, when issued and delivered
in accordance with the provisions of the Notes and the Indenture,
will be validly issued, fully paid and nonassessable and none of
them will be issued in violation of any preemptive or other similar
right and will conform to the description of the Common Stock in
the Prospectus. 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 Notes conform in all material
respects to all statements in relation thereto contained in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus.
(w) All
outstanding shares of capital stock of each of the 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.
(x) 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
Representative by each person listed on Exhibit A
thereto.
(y) The
Notes have been duly authorized by the Company and, when executed,
authenticated and issued in accordance with the terms of the
Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, will constitute valid and legally
binding obligations of the Company entitled to the benefits
provided by the Indenture and enforceable against the Company in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally and to general
equitable principles. The Indenture has been duly authorized and
duly qualified under the Trust Indenture Act and, when executed and
delivered by the Company and the Trustee, will constitute a valid
and legally binding instrument, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors’ rights generally and to general equitable
principles. The Notes and the Indenture will conform to the
descriptions thereof in the Pricing Disclosure Package and the
Prospectus and will be in substantially the form previously
delivered to you.
(z) All
necessary corporate action has been duly and validly taken by the
Company to authorize the execution, delivery and performance by the
Company of this Agreement, the issuance and sale by the Company of
the Notes and the issuance by the Company of the shares of Common
Stock issuable upon conversion of the Notes. 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, subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors’ rights generally and to general equitable
principles.
(aa) 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 reasonably be expected to result in
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, would reasonably be expected to result in a Material
Adverse Effect and has no reason to believe that such officers will
not remain in the employment of the Company.
(bb) No
transaction has occurred between or among the Company and any of
its officers or directors, stockholders or any affiliate or
affiliates of any such officer or director or stockholder that is
required to be described in and is not described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus.
(cc) 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 Notes.
(dd) 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 would reasonably be expected to result in a Material
Adverse Effect; nor are there any material proposed additional tax
assessments against the Company or any of its Significant
Subsidiaries.
(ee) The
shares of Common Stock issuable upon conversion of the Notes have
been duly authorized for listing on the New York Stock Exchange and
the Toronto Stock Exchange on or prior to the Firm Notes Closing
Date (as defined herein), subject to official notice of
issuance.
(ff) 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.
(gg) 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.
(hh) The
Company and its Significant 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.
(ii) Each
approval, consent, order, authorization, designation, declaration
or filing of, by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and
delivery by the Company of this Agreement and the consummation of
the transactions herein contemplated required to be obtained or
performed by the Company (including the qualification of the
Indenture under the Trust Indenture Act but except such additional
steps as may be required by the Financial Industry Regulatory
Authority
(“
FINRA ”) or may be necessary to qualify the Notes for
public offering by the Underwriters under the state securities or
blue sky laws in such states as the Underwriters have requested
filings to be made) has been obtained or made and is in full force
and effect.
(jj) There
are no affiliations with FINRA 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.
(kk) 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, reasonably be expected to result
in 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.
(ll) 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).
(mm) The
Company is not and, after giving effect to the offering and sale of
the Notes and the application of proceeds thereof as described in
the Prospectus, will not be required to register as an
“investment company” within the meaning of the
Investment Company Act of 1940, as amended.
(nn) The
Company or any other person affiliated with or acting on behalf of
the Company including, without limitation, any officer, director,
employee, or agent of the Company or any stockholder thereof acting
on behalf of the Company or its subsidiaries, has not, directly or
indirectly, while acting on behalf of the Company or its
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.
(oo) The
operations of the Company and its subsidiaries are and have been
conducted at all times in compliance with applicable financial
record-keeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, applicable
money laundering statutes and applicable rules and regulations
thereunder (collectively, the “Money Laundering Laws”),
and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the Company’s knowledge,
threatened.
(pp) Except
as described in the Pricing Disclosure Package and 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.
(qq) Except
as would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect, 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.
(rr) None
of the Company, its directors or its officers has distributed and
none of them will distribute prior to the later of (i) the
Closing Date and (ii) completion of the distribution of the
Notes, any offering material in connection with the offering and
sale of the Notes other than any Preliminary Prospectus, the
Pricing Disclosure Package, the Prospectus, the Registration
Statement and any Issuer Free Writing Prospectus to which the
Representative has consented in accordance with
Section 4(o)(i) herein.
(ss) There
is and has been no failure on the part of the Company to comply in
all material respects with the applicable provisions of the
Sarbanes-Oxley Act of 2002 a
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