Exhibit 1.3
SECOND AMENDMENT TO EQUITY DISTRIBUTION AGREEMENT
THIS SECOND AMENDMENT TO EQUITY DISTRIBUTION AGREEMENT (this “Amendment”), dated as of June 9, 2017, is by and between Hecla Mining Company, a Delaware corporation (the “Company”), and BMO Capital Markets Corp., a Delaware corporation (“BMOCM”)
W I T N E S S E T H:
WHEREAS, the Company and BMOCM desire to amend that certain Equity Distribution Agreement, dated as of February 23, 2016 and previously amended by that certain First Amendment to Equity Distribution Agreement, dated as of March 15, 2016 (the “Existing Agreement” and, as amended by this Amendment and as the same may be further amended, supplemented, amended or restated or otherwise modified from time to time, the “Equity Distribution Agreement”) in accordance with the terms hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of the agreements herein contained, the parties hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1Certain Definitions. Unless otherwise defined herein or the context otherwise requires, the following terms used in this Amendment, including its preamble and recitals, have the following meanings:
“Amendment” is defined in thepreamble.
“BMOCM” is defined in thepreamble.
“Company” is defined in thepreamble.
“Equity Distribution Agreement” is defined in therecitals.
“Existing Agreement” is defined in therecitals.
SUBPART 1.2Other Definitions. Unless otherwise defined herein or the context otherwise requires, terms used in this Amendment, including itspreamble andrecitals, have the meanings provided in the Existing Agreement.
PART II
AMENDMENTS TO EXISTING AGREEMENT
Effective on the date first written above, the Existing Agreement is hereby amended in accordance with thisPart II. Except as so amended, the Existing Agreement shall continue in full force and effect.
SUBPART 2.1Amendments.
(a)Amendment to Subsection (f) of Section 4. Subsection (f) of Section 4 of the Existing Agreement is hereby amended and restated in its entirety as follows:
“(f) BMOCM shall have received, within the time period set forth in subsection (u) of Section 3, letters dated such date and addressed to BMOCM, in form and substance reasonably satisfactory to BMOCM, (i) confirming that the Accountants are an independent registered public accounting firm within the meaning of the Act, the Exchange Act and the Public Company Accounting Oversight Board, (ii) stating, as of such date, the conclusions and information of the type ordinarily included in accountants’ “comfort letters” to sales agents in connection with registered “at the market” offerings with respect to the audited and unaudited financial statements and certain other financial information contained or incorporated by reference in the Registration Statement and the Prospectus (the first such letter, the “Initial Comfort Letter”) and (iii) in the case of any such letter after the Initial Comfort Letter, updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, as amended or supplemented to the date of such letter.”
(b)Amendment to Schedule 1. Schedule 1 of the Existing Agreement is hereby amended and restated in its entirety as follows:
“Phillips S. Baker, Jr. (CEO), Lindsay A. Hall (SVP & CFO) and Carolyn Turner (Treasurer)”.
PART III
MISCELLANEOUS
SUBPART 3.1Counterparts. This Amendment may be executed by the parties hereto in counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreement. Delivery of executed counterparts of this Amendment by telecopy or other electronic transmission shall be effective as an original.
SUBPART 3.2Full Force and Effect; Limited Amendment. Except as expressly amended or waived hereby, all of the representations, warranties, terms, covenants, conditions and other provisions of the Existing Agreement shall remain unchanged and shall continue to be, and shall remain, in full force and effect in accordance with their respective terms. The amendments set forth herein shall be limited precisely as provided for herein to the provisions expressly amended herein and shall not be deemed to be an amendment to, waiver of, consent to or modification of any other term or provision of the Existing Agreement.
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SUBPART 3.3Governing Law. This Amendment AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING UNDER OR RELATED TO THIS AMENDMENT OR THE EQUITY DISTRIBUTION AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE. Each party hereto hereby irrevocably submits for purposes of any action arising from this Amendment or the Equity Distribution Agreement brought by the other party hereto to the jurisdiction of the courts of New York State located in the Borough of Manhattan and the U.S. District Court for the Southern District of New York.
SUBPART 3.4Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
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Each of the parties hereto has caused a counterpart of this Amendment to be duly executed and delivered as of the date first above written.
| HECLA MINING COMPANY | ||||
| By: | /s/ David C Sienko | |||
| Name: | David C. Sienko | |||
| Title: | V.P. and General Counsel | |||
| BMO CAPITAL MARKETS CORP. | ||||
| By: | /s/ Michael J. Anderson | |||
| Name: | Michael J. Anderson | |||
| Title: | Managing Director | |||
[Signature Page to Amendment]
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