HECLA MINING COMPANY
FIRST AMENDMENT TO EQUITY DISTRIBUTION AGREEMENT
February 15, 2024
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BMO Capital Markets Corp. | | Scotia Capital (USA) Inc. |
151 W. 42nd Street, 32nd Floor | | 250 Vesey Street, 24th Floor |
New York City, New York 10036 | | New York, New York 10281 |
| |
BofA Securities, Inc. | | B. Riley Securities, Inc. |
1 Bryant Park Tower | | 299 Park Avenue, 21st Floor |
New York, New York 10036 | | New York, New York 10171 |
| |
Canaccord Genuity LLC | | Cantor Fitzgerald & Co. Inc. |
99 High Street, 12th Floor | | 499 Park Avenue |
Boston, MA 02110 | | New York, New York 10022 |
| |
CIBC World Markets Corp. | | Credit Suisse Securities (USA) LLC |
300 Madison Avenue, 5th Floor | | 11 Madison Avenue |
New York, New York 10017 | | New York, New York 10010 |
| |
Goldman Sachs & Co. LLC | | H.C. Wainwright & Co., LLC |
200 West Street | | 430 Park Avenue |
New York, New York 10282 | | New York, New York 10022 |
| |
J.P. Morgan Securities LLC | | RBC Capital Markets, LLC |
383 Madison Avenue, 6th Floor | | 200 Vesey Street, 8th Floor |
New York, New York 10179 | | New York, New York 10281 |
| |
Roth Capital Partners, LLC | | UBS Securities LLC |
888 San Clemente Drive, Suite 400 | | 1285 Avenue of the Americas |
Newport Beach, CA 92660 | | New York, New York 10019 |
THIS FIRST AMENDMENT TO EQUITY DISTRIBUTION AGREEMENT (this “Amendment”) is entered into by and among Hecla Mining Company, a Delaware corporation (the “Company”), and BMO Capital Markets Corp., Scotia Capital (USA) Inc., BofA Securities, Inc., B. Riley Securities, Inc., Canaccord Genuity LLC, Cantor Fitzgerald & Co. Inc., CIBC World Markets Corp., Goldman Sachs & Co. LLC, H.C. Wainwright & Co., LLC, J.P. Morgan Securities LLC, RBC Capital Markets, LLC, Roth Capital Partners, LLC and, solely for purposes of Section 8(j) of the Agreement (as defined below), Credit Suisse Securities (USA) LLC (collectively, the “Original Agents”), and UBS Securities LLC (collectively, with the Company and the Original Agents, the “Parties”) to amend that certain Equity Distribution Agreement, dated as of February 18, 2021 (the “Agreement”), by and among the Company and the Original Agents, with respect to the issuance and sale from time to time of up to 60,000,000 shares of the Company’s common
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stock, $0.25 par value per share. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Agreement.
WHEREAS, on February 15, 2024, by the giving of that certain Notice of Termination of Agent (the “Notice of Termination”), Credit Suisse Securities (USA) LLC exercised it right, in accordance with Section 6(b) of the Agreement, to terminate the Agreement as to itself, effective as of the close of business on Thursday, February 15, 2024 (the “Effective Date”); and
WHEREAS, in connection with the termination of the Agreement as to Credit Suisse Securities (USA) LLC, the Parties desire to amend the Agreement to (i) remove Credit Suisse Securities (USA) LLC as an Agent thereunder, (ii) join UBS Securities LLC as an Agent thereunder and (iii) modify certain provisions set forth therein, in each case, effective as of the Effective Date.
NOW, THEREFORE, in consideration of the covenants and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, do hereby agree as follows:
1.Amendments to the Agreement. Effective as of the Effective Date, the Agreement is hereby amended as follows:
(a)The name and address of Credit Suisse Securities (USA) LLC set forth on page 1 of the Agreement is hereby deleted in its entirety.
(b)Page 1 of the Agreement is hereby amended to add the name and address of UBS Securities LLC, immediately below the name and address of RBC Capital Markets, LLC, as follows:
UBS Securities LLC
1285 Avenue of the Americas
New York, New York 10019
(c)The definitions of the terms “Agent” and “Agents” set forth on page 1 of the Agreement are hereby amended and restated in their entirety as follows:
BMO Capital Markets Corp., Scotia Capital (USA) Inc., BofA Securities, Inc., B. Riley Securities, Inc., Canaccord Genuity LLC, Cantor Fitzgerald & Co. Inc., CIBC World Markets Corp., Goldman Sachs & Co. LLC, H.C. Wainwright & Co., LLC, J.P. Morgan Securities LLC, RBC Capital Markets, LLC, Roth Capital Partners, LLC, and UBS Securities LLC (collectively, the “Agents” and each individually, an “Agent”)
(d)Section 8(a) of the Agreement is hereby amended and restated in its entirety as follows:
(a) Notices. Notices given pursuant to any of the provisions of this Agreement shall be in writing and, unless otherwise specified, shall be mailed, delivered or sent by email transmission (i) if to the Company, at the office of the Company, 6500 North Mineral
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Drive, Suite 200, Coeur d’Alene, Idaho 83815-9408, Attention: Chief Executive Officer, Email: dsienko@hecla.com, with a copy at the same address to the attention of the General Counsel, (ii) if to any Agent, at the address of such Agent set forth in Schedule 4 hereto. Any such notice shall be effective only upon receipt. Any notice under Section 1 may be made by telephone, but if so made shall be subsequently confirmed in writing (which, with respect to the Agency Transactions contemplated by Section 1 only, may include, in the case of the Agents, electronic mail to any Authorized Company Representative, and in the case of the Company, electronic mail to the Agents).
(e)The contact information of Credit Suisse Securities (USA) LLC set forth on Schedule 4 of the Agreement hereby deleted in its entirety.
(f)Schedule 4 of the Agreement is hereby amended to add the contact information for UBS Securities LLC, immediately below the contact information for Roth Capital Partners, LLC, as follows:
UBS Securities LLC
1285 Avenue of the Americas
New York, New York 10019
Attention: Equity Syndicate
Email: jesse.o-neill@ubs.com
2.Full Force and Effect; No Other Amendments; References to the Agreement. Except as expressly set forth in this Amendment, all of the representations, warranties, terms, covenants, conditions and other provisions of the Agreement (including the indemnification, contribution and reimbursement provisions) shall continue 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 hereby and shall not be deemed to be an amendment to, waiver of, consent to or modification of any other term or provision of the Agreement. All references to the Agreement in the Agreement or in any other document executed or delivered in connection therewith shall, from and after the date hereof, be deemed a reference to the Agreement as amended by this Amendment.
3.Joinder. UBS Securities LLC hereby agrees, effective as of Effective Date, to become a party to the Agreement and for all purposes of the Agreement to be included within the defined terms “Agent” and “Agents” (as defined in the Agreement). By execution and delivery of this Amendment, UBS Securities LLC hereby agrees, effective as of the Effective Date, (i) to be bound by the terms, provisions and agreements of the Agreement as an Agent thereunder, (ii) to make and be bound by all representations, warranties, covenants and acknowledgements of, or attributable to, the Agents under the Agreement, as fully as if UBS Securities LLC had executed and delivered the Agreement as of the date thereof, and (iii) to perform all obligations and duties required of an Agent under the Agreement. The obligations of the Agents assumed by UBS Securities LLC under this Amendment shall be several, and not joint, and UBS Securities LLC shall be not be liable for the acts or omissions of any other Agent under the Agreement. For purposes of this Section 3, all references to the Agreement shall be deemed a reference to the Agreement as amended by this Amendment.
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4.Wavier of Notice Rights. With respect to the Notice of Termination, the Company and each Original Agent hereby waives its right pursuant to Section 8(a) of the Agreement to receive all notices by mail or hand delivery. The Parties acknowledge that such waiver shall not operate or be construed as a waiver of any other provision of the Agreement or any subsequent breach of the Agreement.
5.Governing Law. THIS AMENDMENT AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING UNDER OR RELATED TO THIS AMENDMENT, 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 brought by any 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.
6.Headings. The headings herein are inserted for convenience only and are not included to be part of, or to affect the meaning or interpretation of, this Amendment.
7.Counterparts. This Amendment may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile or electronic mail (including, without limitation, “pdf”, “tif” or “jpg”) and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Amendment and any certificate, agreement or other document to be signed in connection with this Amendment shall be deemed to include Electronic Signatures (as defined below), deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including, without limitation, the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. For the purpose of this Section 6, “Electronic Signature” means any electronic symbol or process (including, without limitation, DocuSign and AdobeSign) attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record.
(Signature Pages Follow)
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IN WITNESS WHEREOF, each of the Parties has caused this Amendment to be duly executed and delivered by its proper and duly authorized officer(s) as of the date first set forth above.
HECLA MINING COMPANY
By: /s/ David C. Sienko
Name: David C. Sienko
Title: Vice President and General Counsel
First Amendment to Equity Distribution Agreement
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BMO CAPITAL MARKETS CORP.
By: /s/ Brad Pavelka
Name: Brad Pavelka
Title: Managing Director
SCOTIA CAPITAL (USA) INC.
By: /s/ John Cronin
Name: John Cronin
Title: Managing Director
BOFA SECURITIES, INC.
By: /s/ Christine Roemer
Name: Christine Roemer
Title: Managing Director
B. RILEY SECURITIES, INC.
By: /s/ Patrice McNicoll
Name: Patrice McNicoll
Title: SMD, Co-Head of Investment Banking
CANACCORD GENUITY LLC
By: /s/ Jennifer Pardi
Name: Jennifer Pardi
Title: Managing Director
CANTOR FITZGERALD & CO. INC.
By: /s/ Sage Kelly
Name: Sage Kelly
Title:
First Amendment to Equity Distribution Agreement
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CIBC WORLD MARKETS CORP.
By: /s/ Eric Reuther
Name: Eric Reuther
Title: Managing Director
GOLDMAN SACHS & CO. LLC
By: /s/ Charles Park
Name: Charles Park
Title: Managing Director
H.C. WAINWRIGHT & CO., LLC
By: /s/ Edward D. Silvera
Name: Edward D. Silvera
Title: Chief Operating Officer
J.P. MORGAN SECURITIES LLC
By: /s/ Sanjeet Dewal
Name: Sanjeet Dewal
Title: Managing Director
RBC CAPITAL MARKETS, LLC
By: /s/ Michael Ventura
Name: Michael Ventura
Title: Managing Director, ECM
ROTH CAPITAL PARTNERS, LLC
By: /s/ J. Barry
Name: J. Barry
Title: Managing Director
First Amendment to Equity Distribution Agreement
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UBS SECURITIES LLC
By: /s/ Christopher Siska
Name: Christopher Siska
Title: Managing Director
By: /s/ Jesse O’Neill
Name: Jesse O’Neill
Title: Executive Director
FOR PURPOSES OF SECTION 8(j) OF THE AGREEMENT ONLY:
CREDIT SUISSE SECURITIES (USA) LLC
By: /s/ Robert D’Addario
Name: Robert D’Addario
Title: Director
First Amendment to Equity Distribution Agreement
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