Hecla Mining Co S-3ASR, filed May 20, 2021
Hecla Mining Co (HL)
Table of Contents
As filed with the Securities and Exchange Commission on May 20, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HECLA MINING COMPANY
(Exact name of registrant as specified in its charter)
| Delaware | 1400 | 77-0664171 | ||
| (State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification Number) |
6500 North Mineral Drive, Suite 200
Coeur d’Alene, Idaho 83815-9408
(208) 769-4100
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
David C. Sienko, Esq.
General Counsel
Hecla Mining Company
6500 North Mineral Drive, Suite 200
Coeur d’Alene, Idaho 83815
(208) 769-4100
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☒ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||
| Emerging growth company | ☐ | |||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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| Title of Each Class of Securities to be Registered |
Amount to be Registered(1) |
Proposed Maximum Per Share(2) |
Proposed Maximum Aggregate Offering Price(2) |
Amount of Registration Fee | ||||
| Common Stock, par value $0.25 per share |
2,068,000 | $7.11 | $14,703,480 | $1,604.15 | ||||
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| (1) | Consists of shares of the registrant’s common stock issued or issuable upon the exercise of warrants. Pursuant to Rule 416 under the Securities Act of 1933, as amended, the amount of shares of the registrant’s common stock registered hereby includes an indeterminate number of shares of the registrant’s common stock that may be issued in connection with stock splits, stock dividends or similar transactions. |
| (2) | Estimated solely for the purposes of calculating the registration fee pursuant to Rule 457(c) under the Securities Act of 1933, as amended, based upon the average of the high and low prices of the registrant’s common stock reported on the New York Stock Exchange on May 13, 2021. |
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PROSPECTUS
Hecla Mining Company
Common Stock
($0.25 Par Value)
We have prepared this prospectus to register for resale 2,068,000 shares of common stock of Hecla Mining Company, par value $0.25, that are issuable upon the exercise by the selling shareholders named herein of 2,068,000 outstanding warrants to purchase one share of our common stock (“Warrants”). Each Warrant has an exercise price of $8.03 (subject to adjustment as provided therein) and may be exercised at any time and from time to time through and up to the earlier of (i) 5:00 p.m. (Toronto time) on April 3, 2032, and (ii) 5:00 p.m. (Toronto time) on the date that is 60 days following the delivery to the holder of the Warrants of written notice that the closing price of the shares of our common stock on the stock exchange or other market on which the trading in the shares of our common stock primarily occurs equals or exceeds a 100% premium to the exercise price for a period of 60 consecutive trading days. The Warrants are currently owned by Waterton Nevada Splitter, LLC (“Waterton”), which acquired the Warrants as part of our acquisition of Klondex Mines Ltd. on July 20, 2018. Waterton and all transferees that acquire all or any portion of the Warrants from time to time or any shares of our common stock issued or issuable from time to time upon the exercise of the Warrants are the selling shareholders hereunder. We are not selling any shares of our common stock under this prospectus and will not receive any of the proceeds from the sale of the shares offered by the selling shareholders, although we will receive funds from the exercise of Warrants by the selling shareholders and we will incur expenses in connection with the offering.
Shares of our common stock are listed on the New York Stock Exchange under the symbol “HL.” On May 19, 2021, the last reported sale price per share of our common stock, as quoted on the New York Stock Exchange, was $8.65.
Investing in our common stock involves risks. See “Risk Factors,” beginning on page 7 and in the documents incorporated by reference in this prospectus, for a discussion of certain factors that you should consider before deciding to purchase the shares.
Neither the Securities and Exchange Commission (“SEC”) nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
You should rely only on the information contained or incorporated by reference in this prospectus. We have not authorized anyone to provide you with information different from that contained or incorporated by reference in this prospectus. This prospectus does not constitute an offer to sell or a solicitation of an offer to buy securities other than those specifically offered hereby or an offer to sell any securities offered hereby in any jurisdiction where, or to any person to whom, it is unlawful to make such offer or solicitation. You should not assume that the information provided in this prospectus, any prospectus supplement, the documents incorporated by reference or any other offering material is accurate as of any date other than the date on the front of those documents, as applicable.
The date of this prospectus is May 20, 2021.
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INFORMATION REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in this prospectus and other public filings (including information incorporated by reference) are “forward-looking statements” and are intended to be covered by the safe harbor provided for under Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Our forward-looking statements include our current expectations and projections about future production, results, performance, prospects and opportunities, including reserves, resources and other mineralization. We have tried to identify these forward-looking statements by using words such as “may,” “might,” “will,” “expect,” “anticipate,” “believe,” “could,” “intend,” “plan,” “estimate” and similar expressions. These forward-looking statements are based on information currently available to us and are expressed in good faith and believed to have a reasonable basis. However, our forward- looking statements are subject to a number of risks, uncertainties and other factors that could cause our actual production, results, performance, prospects or opportunities, including reserves, resources and other mineralization, to differ materially from those expressed in, or implied by, these forward-looking statements.
These risks, uncertainties and other factors include, but are not limited to, those set forth in our Annual Report on Form 10-K for the year ended December 31, 2020, which is incorporated by reference in this prospectus, in any other SEC Reports we file, and in this prospectus, including the following:
| • | a substantial or extended decline in metals prices would have a material adverse effect on us; |
| • | an extended decline in metals prices, an increase in operating or capital costs, mine accidents or closures, increasing regulatory obligations, or our inability to convert exploration potential to reserves may cause us to record write-downs, which could negatively impact our results of operations; |
| • | we have a substantial amount of debt that could impair our financial health and prevent us from fulfilling our obligations under our existing and future indebtedness; |
| • | we have had losses that could reoccur in the future; |
| • | our accounting and other estimates may be imprecise; |
| • | commodity and currency risk management activities could prevent us from realizing possible revenues or lower costs or expose us to losses; |
| • | our ability to recognize the benefits of deferred tax assets related to net operating loss carryforwards and other items is dependent on future cash flows and taxable income; |
| • | returns for investments in pension plans and pension plan funding requirements are uncertain; |
| • | natural disasters, public health crises (including COVID-19), political crises, and other catastrophic events or other events outside of our control may materially and adversely affect our business or financial results; |
| • | COVID-19 virus pandemic may heighten other risks; |
| • | mining accidents or other adverse events at an operation could decrease our anticipated production or otherwise adversely affect our operations; |
| • | our operations may be adversely affected by risks and hazards associated with the mining industry that may not be fully covered by insurance; |
| • | our costs of extending reserves or development of new orebodies and other capital costs may be higher and provide less return than we estimated; |
| • | our ore reserve estimates may be imprecise; |
| • | efforts to expand the finite lives of our mines may not be successful or could result in significant demands on our liquidity, which could hinder our growth; |
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| • | our ability to market our metals production depends on the availability of smelters and/or refining facilities and our operations and financial results may be affected by disruptions or closures or the unavailability of smelters and/or refining facilities for other reasons; |
| • | we derive a significant amount of revenue from a relatively small number of customers and occasionally enter into concentrate spot market sales with metal traders; |
| • | shortages of critical parts and equipment may adversely affect our operations and development projects; |
| • | our foreign activities are subject to additional inherent risks; |
| • | our operations and properties in Canada expose us to additional political risks; |
| • | certain of our mines and exploration properties are located on land that is or may become subject to traditional territory, title claims and/or claims of cultural significance, and such claims and the attendant obligations of the federal government to those tribal communities and stakeholders may affect our current and future operations; |
| • | we may be subject to a number of unanticipated risks related to inadequate infrastructure; |
| • | we face inherent risks in acquisitions of other mining companies or properties that may adversely impact our growth strategy; |
| • | we may be unable to successfully integrate the operations of the properties we acquire; |
| • | the issues we have faced at our Nevada Operations unit could require us to write-down the associated long-lived assets. We could face similar issues at our other operations. Such write-downs may adversely affect our results of operations and financial condition; |
| • | we may not realize all of the anticipated benefits from our acquisitions, including our acquisition of Klondex; |
| • | the properties we may acquire may not produce as expected, and we may be unable to determine reserve potential, identify liabilities associated with the acquired properties or obtain protection from sellers against such liabilities; |
| • | we face risks relating to transporting our products from our mines, as well as transporting employees and materials at Greens Creek; |
| • | we face substantial governmental regulation, including the Mine Safety and Health Act, various environmental laws and regulations and the 1872 Mining Law; |
| • | our operations are subject to complex, evolving and increasingly stringent environmental laws and regulations. Compliance with environmental regulations, and litigation based on such regulations, involves significant costs and can threaten existing operations or constrain expansion opportunities; |
| • | mine closure and reclamation regulations impose substantial costs on our operations and include requirements that we provide financial assurance supporting those obligations. These costs could significantly increase and we might not be able to provide financial assurance; |
| • | we are required to obtain governmental permits and other approvals in order to conduct mining operations; |
| • | we are currently involved in ongoing legal disputes that may materially adversely affect us; |
| • | our environmental and asset retirement obligations may exceed the provisions we have made; |
| • | new federal and state laws, regulations and initiatives could impact our operations; |
| • | legal challenges could prevent the Rock Creek or Montanore projects from ever being developed; |
| • | the titles to some of our properties may be defective or challenged; |
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| • | we may be unable to generate sufficient cash to service all of our debt and meet our other ongoing liquidity needs and may be forced to take other actions to satisfy our obligations under our debt, which may be unsuccessful; |
| • | the price of our stock has a history of volatility and could decline in the future; |
| • | our Series B preferred stock has a liquidation preference of $50 per share, or $7.9 million in the aggregate; |
| • | we may not be able to pay common or preferred stock dividends in the future; |
| • | our existing stockholders are effectively subordinated to the holders of our 7.25% Senior Notes due 2028; |
| • | the issuance of additional shares of our preferred or common stock in the future could adversely affect holders of common stock; |
| • | the provisions in our certificate of incorporation, our by-laws and Delaware law could delay or deter tender offers or takeover attempts; |
| • | the terms of our debt impose restrictions on our operations; |
| • | our variable rate indebtedness subjects us to interest rate risk, which could cause our indebtedness service obligations to increase significantly; |
| • | global financial events or developments impacting major industrial or developing countries may have an impact on our business and financial condition in ways that we currently cannot predict; |
| • | tariffs, other potential changes to tariff and import/export regulations, and ongoing trade disputes between the United States and other jurisdictions may have a negative effect on global economic conditions and our business, financial results and financial condition; |
| • | our profitability could be affected by the prices of other commodities; |
| • | our business depends on availability of skilled miners and good relations with employees; |
| • | our information technology systems may be vulnerable to disruption which could place our systems at risk from data loss, operational failure, or compromise of confidential information; |
| • | competition from other mining companies may harm our business; |
| • | additional issuances of equity securities by us would dilute the ownership of our existing stockholders and could reduce our earnings per share; and |
| • | if a large number of shares of our common stock are sold in the public market, the sales could reduce the trading price of our common stock and impede our ability to raise future capital. |
Given these risks and uncertainties, readers are cautioned not to place undue reliance on our forward- looking statements. Projections and other forward-looking statements included in this prospectus have been prepared based on assumptions, which we believe to be reasonable, but not in accordance with United States generally accepted accounting principles (“GAAP”) or any guidelines of the SEC. Actual results may vary, perhaps materially. You are strongly cautioned not to place undue reliance on such projections and other forward-looking statements. All subsequent written and oral forward-looking statements attributable to Hecla Mining Company or to persons acting on our behalf are expressly qualified in their entirety by these cautionary statements. Except as required by federal securities laws, we disclaim any intention or obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.
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The following summary is qualified in its entirety by reference to the more detailed information and consolidated financial statements appearing elsewhere or incorporated by reference in this prospectus, as well as the other materials filed with the SEC that are considered to be part of this prospectus. For a more complete understanding of our company and this offering and before making any investment decision, you should read this entire prospectus, including “Risk Factors” and the financial information and the notes thereto included and incorporated by reference herein. Unless otherwise stated or the context otherwise requires, in this prospectus, “we,” “us,” “our,” “Hecla” or the “Company” refers to Hecla Mining Company and its subsidiaries.
Hecla Mining Company and our subsidiaries have provided precious and base metals to the U.S. and worldwide since 1891. We discover, acquire and develop mines and other mineral interests and produce and market (i) concentrates containing silver, gold, lead and zinc, (ii) carbon material containing silver and gold, and (iii) unrefined dore´ containing silver and gold. In doing so, we intend to manage our business activities in a safe, environmentally responsible and cost-effective manner.
The lead, zinc and bulk concentrates we produce are sold to custom smelters, metals traders and third-party processors, and the unrefined doré we produce is sold to refiners or further refined before sale of the metals to traders. We are organized and managed into five segments that encompass our operating units: the Greens Creek unit, the Lucky Friday unit, the Casa Berardi unit, the San Sebastian unit, and the Nevada Operations unit.
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The map below shows the locations of our operating units and our exploration and pre-development projects, as well as our corporate offices located in Coeur d’Alene, Idaho and Vancouver, British Columbia.
Hecla Mining Company Information
Our principal executive offices are located at 6500 N. Mineral Drive, Suite 200, Coeur d’Alene, Idaho, 83815-9408 and our telephone number is (208) 769-4100. Our website is www.hecla-mining.com. The information contained on our website is not part of this prospectus and is not incorporated into this prospectus by reference.
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The Shares
The following summary is provided solely for your convenience. This summary is not intended to be complete. You should read the full text and more specific details contained elsewhere or incorporated by reference in this prospectus. For a more detailed description of the shares, see “Description of Capital Stock.”
| Issuer |
Hecla Mining Company | |
| Securities Offered |
2,068,000 shares of the common stock of Hecla Mining Company, par value $0.25. | |
| National Securities Exchange |
All of our currently outstanding shares of common stock are listed on the New York Stock Exchange (“NYSE”) under the symbol “HL.” | |
| Use of Proceeds |
We will not receive any cash proceeds from the sale by the selling shareholders of the shares. | |
| Registration Rights |
We have filed a shelf registration statement, of which this prospectus is a part, under the Securities Act, relating to the resale of the shares. We will use our commercially reasonable efforts to keep the shelf registration statement continuously effective until the earlier of (i) the date on which all of the Warrants have been exercised in full and all of the shares of common stock issued upon such exercise of all of the Warrants have been sold by Waterton Nevada Splitter, LLC (“Waterton”) and all transferees that acquire all or any portion of the Warrants from time to time or any shares of our common stock issued or issuable from time to time upon the exercise of the Warrants (collectively, the “selling shareholders”) under the registration statement of which this prospectus is a part or pursuant to Rule 144 (“Rule 144”) promulgated under the Securities Act of 1933, as amended (“Securities Act”), on the NYSE, and (ii) the later of (A) the first (1st) anniversary of the date on which all of the shares of common stock issuable upon such exercise of all of the Warrants have been issued by us after all of the Warrants have been exercised in full (provided that Rule 144 is then available for the resale of any remaining shares of common stock issued upon such exercise of all of the Warrants without any hold period requirement) or, if required, such later period as needed to ensure that Rule 144 is then available for the resale of such shares of common stock without any hold period requirement and without any other restriction thereunder and after all of the restrictive legends have been removed from all book entry positions or certificates representing such shares of common stock issued upon such exercise of all of the Warrants, and (B) if the Warrants have not been exercised in full at or prior to the expiration of the Warrants, the expiration of the term of the Warrants. | |
| Selling Shareholders |
The shares are being sold by the selling shareholders. See “Selling Shareholders” beginning on page 9. | |
| Risk Factors |
Investing in the shares involves substantial risks. You should carefully consider the risk factors included under Item 1A of our Annual Report on Form 10-K for the fiscal year ended (i) December 31, 2020, which is incorporated by reference in this prospectus, and any subsequent Quarterly Reports on Form 10-Q, each of which is also incorporated by reference in this prospectus. | |
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An investment in our common stock involves a significant degree of risk. You should carefully consider the risk factors included in our Annual Report on Form 10-K for the year ended December 31, 2020 and in any subsequently filed Quarterly Report on Form 10-Q, each of which are incorporated herein by reference, before you decide to purchase any of our common stock. Any of these risks could materially and adversely affect our business, financial condition, results of operations and cash flows. In that case, you may lose all or part of your investment.
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We will not receive any proceeds from the sale of the shares by the selling shareholders. Accordingly, the sale of the shares by the selling shareholders will not result in any change in our capitalization (although, if all of the Warrants are exercised, our outstanding shares of common stock will increase by 2,068,000 at that time). We are filing this registration statement to register for resale up to 2,068,000 shares of our common stock so as to allow the selling shareholders to resell, from time to time, the shares.
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We have prepared this prospectus to facilitate the sale by the selling shareholders, from time to time, of up to 2,068,000 shares of our common stock to be acquired upon the exercise of the Warrants. The Warrants were issued to Waterton, a Nevada Limited Liability Company, on July 20, 2018, and were amended on April 29, 2021 to grant registration rights, pursuant to which we are filing the registration statement of which this prospectus is part, to Waterton, each transferee that acquires all or any portion of the Warrants from time to time pursuant to Section 12 of the Warrants and each holder or transferee that acquires any of our shares of common stock issued from time to time upon the exercise of the Warrants. The Warrants were issued in connection with our acquisition of Klondex Mines Ltd., in replacement of Klondex warrants outstanding as of the closing date (July 20, 2018).
On September 11, 2018, a lawsuit was filed in the Ontario (Canada) Superior Court of Justice by Waterton against us, our subsidiary Klondex Mines Unlimited Liability Company, and Havilah Mining Corporation (now known as 1911 Gold Corporation), an entity that was formed to own the Canadian assets of Klondex that we did not acquire as part of the Klondex acquisition, and of which we currently own approximately 7.5%. Among other things, the lawsuit alleged that we were in breach of contract in connection with the issuance to Waterton of the Warrants because they were issued at a lower value than Waterton alleged it was entitled to.
The lawsuit was settled by the parties on April 29, 2021 through multiple agreements, including (i) an amendment to the Warrants to include registration rights in favor of the selling shareholders with respect to the registration for resale with the SEC of the 2,068,000 shares of our common stock issued or issuable from time to time upon the exercise of the Warrants and (ii) a registration rights agreement with Waterton setting forth the details of those registration rights. Under the registration rights agreement, we agreed to use commercially reasonable efforts to cause the registration statement of which this prospectus is a part to (i) be filed as promptly as reasonably practicable but in no event more than 30 days after April 29, 2021, (ii) become effective (A) upon filing, if we are a well-known seasoned issuer, or (B) as soon as reasonably practicable after the filing thereof (but in no event later than the thirtieth (30th) day following the filing thereof, unless the registration statement is the subject of a review by the SEC or its staff in which case the 90th day after filing thereof), if we are not a well-known seasoned issuer and (iii) maintain its effectiveness until the earlier of (A) the date on which all of the Warrants have been exercised in full and all of the shares of common stock issued upon such exercise of all of the Warrants have been sold by the selling shareholders under the registration statement of which this prospectus is a part or pursuant to Rule 144 on the NYSE, and (B) the later of (1) the first (1st) anniversary of the date on which all of the shares of common stock issuable upon such exercise of all of the Warrants have been issued by us after all of the Warrants have been exercised in full (provided that Rule 144 is then available for the resale of any remaining shares of common stock issued upon such exercise of all of the Warrants without any hold period requirement) or, if required, such later period as needed to ensure that Rule 144 is then available for the resale of such shares of common stock without any hold period requirement and without any other restriction thereunder and after all of the restrictive legends have been removed from all book entry positions or certificates representing such shares of common stock issued upon such exercise of all of the Warrants, and (2) if the Warrants have not been exercised in full at or prior to the expiration of the Warrants, the expiration of the term of the Warrants.
This prospectus is part of the registration statement filed in satisfaction of our obligations under the registration rights agreement. The registration rights agreement is included as an exhibit to the registration statement of which this prospectus is a part, and the descriptions of that agreement contained in this prospectus are qualified by reference to that exhibit.
The agreement by us to amend the Warrants and enter into the registration rights agreement with Waterton was part of a larger transaction on April 29, 2021 between us and Waterton. In addition to the matters relating to the Warrants and the dismissal of the lawsuit discussed above, we also agreed to purchase from Waterton’s affiliate, Royalty Portfolio, LLC, for $5,000,000 in the aggregate (i) a 1% royalty that was encumbering our affiliate’s Hollister Mine and the Hatter Grabben exploration project and (ii) a 3% royalty that was encumbering our affiliate’s Aurora property, each of which are part of our Nevada Operations business unit.
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The registration of the resale of these shares does not necessarily mean that the selling shareholders will sell all or any of the shares registered by the registration statement of which this prospectus forms a part. The selling shareholders may offer and sell all or any portion of the shares covered by this prospectus and any applicable prospectus supplement from time to time but are under no obligation to offer or sell any such shares. Because the selling shareholders may sell, transfer or otherwise dispose of all, some or none of the shares covered by this prospectus, we cannot determine the number of shares that will be sold, transferred or otherwise disposed of by the selling shareholders or the amount or percentage of shares that will be held by the selling shareholders upon termination of any particular offering. Based on information provided to us by Waterton, Waterton currently does not beneficially own any shares of our common stock.
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The following is a summary of certain considerations associated with the purchase and holding of the shares by employee benefit plans that are subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), plans, individual retirement accounts and other arrangements that are subject to Section 4975 of the Internal Revenue Code (the “Code”) or provisions under any federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar Laws”), and entities whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”).
General Fiduciary Matters
ERISA and the Code impose certain duties on persons who are fiduciaries of a Plan subject to Title I of ERISA or Section 4975 of the Code (a “Covered Plan”) and prohibit certain transactions involving the assets of a Covered Plan and its fiduciaries or other interested parties. Under ERISA and the Code, any person who exercises any discretionary authority or control over the administration of such a Covered Plan or the management or disposition of the assets of such a Covered Plan, or who renders investment advice for a fee or other compensation to such a Covered Plan, is generally considered to be a fiduciary of the Covered Plan.
In considering an investment in the shares of a portion of the assets of any Plan, a fiduciary should determine whether the investment is in accordance with the documents and instruments governing the Plan and the applicable provisions of ERISA, the Code or any Similar Law relating to a fiduciary’s duties to the Plan including, without limitation, the prudence, diversification, delegation of control and prohibited transaction provisions of ERISA, the Code and any other applicable Similar Laws. A fiduciary of a Plan should consider the Plan’s particular circumstances and all of the facts and circumstances of the investment, including, but not limited to, the matters referred to above under “Risk Factors,” in determining whether an investment in the shares satisfies these requirements.
Prohibited Transaction Issues
Section 406 of ERISA and Section 4975 of the Code prohibit Covered Plans from engaging in specified transactions involving plan assets with persons or entities who are “parties in interest,” within the meaning of ERISA, or “disqualified persons,” within the meaning of Section 4975 of the Code, unless an exemption is available. A party in interest or disqualified person who engages in a non-exempt prohibited transaction may be subject to excise taxes and other penalties and liabilities under ERISA and the Code. In addition, the fiduciary of the Covered Plan that engages in such a non-exempt prohibited transaction may be subject to penalties and liabilities under ERISA and the Code. The acquisition and/or holding of shares by a Covered Plan with respect to which the issuer or the selling shareholders is considered a party in interest or a disqualified person may constitute or result in a direct or indirect prohibited transaction under Section 406 of ERISA and/or Section 4975 of the Code, unless the investment is acquired and is held in accordance with an applicable statutory, class or individual prohibited transaction exemption.
In this regard, the U.S. Department of Labor has issued prohibited transaction class exemptions, or “PTCEs,” that may provide exemptive relief for direct or indirect prohibited transactions resulting from the sale, purchase or holding of the shares. These class exemptions include, without limitation, PTCE 84-14 respecting transactions determined by independent qualified professional asset managers, PTCE 90-1 respecting insurance company pooled separate accounts, PTCE 91-38 respecting bank collective investment funds, PTCE 95-60 respecting life insurance company general accounts, and PTCE 96-23 respecting transactions determined by in-house asset managers. In addition, Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code provide relief from the prohibited transaction provisions of ERISA and Section 4975 of the Code for certain transactions, provided that neither the issuer of the securities nor any of its affiliates (directly or indirectly) have or exercise any discretionary authority or control or render any investment advice with respect to the assets of any Covered
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Plan involved in the transaction, and provided further that the Covered Plan pays no more than adequate consideration in connection with the transaction. There can be no assurance that all of the conditions of any such exemptions will be satisfied.
Plans and entities that are (or whose assets constitute the assets of) governmental plans (as defined in Section 3(32) of ERISA), church plans (as defined in section 3(33) of ERISA) that have not made an election under section 410(d) of the Code and non-United States plans, while not subject to the fiduciary responsibility provisions of Title I of ERISA or the prohibited transaction provisions of Title I of ERISA or Section 4975 of the Code, may nevertheless be subject to Similar Laws that include similar requirements. Fiduciaries of any such Plans should consult with their counsel before purchasing any shares.
Because of the foregoing, the shares should not be purchased or held by any person investing “plan assets” of any Plan, unless such purchase and holding will not constitute a non-exempt prohibited transaction under ERISA and the Code or similar violation of any applicable Similar Laws.
Representation
Accordingly, by acceptance of a share, each purchaser and subsequent transferee will be deemed to have represented and warranted that either (i) no portion of the assets used by such purchaser or transferee to acquire or hold the shares constitutes assets of any Plan or (ii) the purchase of the shares or the holding of the shares by such purchaser or transferee will not constitute a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or a similar violation under any applicable Similar Laws.
The foregoing discussion is general in nature and is not intended to be all-inclusive. Due to the complexity of these rules and the penalties that may be imposed upon persons involved in non-exempt prohibited transactions, it is particularly important that fiduciaries, or other persons considering purchasing the shares (and holding the shares) on behalf of, or with the assets of, any Plan, consult with their counsel regarding the potential applicability of ERISA, Section 4975 of the Code and any Similar Laws to such investment and whether an exemption would be applicable to the purchase and holding of the shares.
Purchasers of the shares have the exclusive responsibility for ensuring that their purchase and holding of the shares complies with the fiduciary responsibility rules of ERISA and does not violate the prohibited transaction rules of ERISA, the Code or applicable Similar Laws. Neither this discussion nor anything provided in this prospectus is or is intended to be investment advice directed at any potential Plan purchasers or at Plan purchasers generally and such purchasers of any shares (or beneficial interests therein) should consult and rely on their own counsel and advisers as to whether an investment in the shares is suitable for the Plan.
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The following summary is not complete. You should refer to the applicable provisions of our certificate of incorporation and our bylaws, and to Delaware corporate law for a complete understanding of the terms and rights of our common and preferred stock.
Common Stock
We are authorized to issue 750,000,000 shares of common stock, $0.25 par value per share, of which 535,556,380 shares of common stock were outstanding as of May 19, 2021. All of our currently outstanding shares of common stock are listed on the NYSE under the symbol “HL.”
Subject to the rights of the holders of any outstanding shares of preferred stock, each share of common stock is entitled to: (i) one vote on all matters presented to the shareholders, with no cumulative voting rights; (ii) receive such dividends as may be declared by the Board of Directors out of funds legally available therefor; and (iii) in the event of our liquidation or dissolution, share ratably in any distribution of our assets.
Holders of shares of common stock do not have preemptive rights or other rights to subscribe for unissued or treasury shares or securities convertible into such shares, and no redemption or sinking fund provisions are applicable. All outstanding shares of common stock are fully paid and nonassessable.
Preferred Stock
Our certificate of incorporation authorizes us to issue 5,000,000 shares of preferred stock, par value $0.25 per share. The preferred stock is issuable in series with such voting rights, if any, designations, powers, preferences and other rights and such qualifications, limitations and restrictions as may be determined by our Board of Directors. The Board may fix the number of shares constituting each series and increase or decrease the number of shares of any series. As of May 19, 2021, 157,816 shares were outstanding, all of which were shares of Series B preferred stock. All of the shares of our Series B preferred stock are listed on the NYSE under the symbol “HL PB.”
Ranking
The Series B preferred stock ranks senior to our common stock and any shares of Series A junior participating preferred stock (none of which have ever been issued) with respect to payment of dividends, and amounts due upon liquidation, dissolution or winding up.
While any shares of Series B preferred stock are outstanding, we may not authorize the creation or issuance of any class or series of stock that ranks senior to the Series B preferred stock as to dividends or amounts due upon liquidation, dissolution or winding up without the consent of the holders of 66 2/3% of the outstanding shares of Series B preferred stock and any other series of preferred stock ranking on a parity with the Series B preferred stock as to dividends and amounts due upon liquidation, dissolution or winding up, voting as a single class without regard to series.
Dividends
Series B preferred shareholders are entitled to receive, when, as and if declared by the Board of Directors out of our assets legally available therefor, cumulative cash dividends at the rate per annum of $3.50 per share of Series B preferred stock. Dividends on the Series B preferred stock are payable quarterly in arrears on October 1, January 1, April 1 and July 1 of each year (and, in the case of any undeclared and unpaid dividends, at such additional times and for such interim periods, if any, as determined by the Board of Directors), at such annual rate. Dividends are cumulative from the date of the original issuance of the Series B preferred stock, whether or not in any dividend period or periods we have assets legally available for the payment of such dividends. Accumulations of dividends on shares of Series B preferred stock do not bear interest.
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All quarterly dividends on our Series B preferred stock for 2018, 2019 and 2020 were declared and paid in cash.
Redemption
The Series B preferred stock is redeemable at our option, in whole or in part, at $50 per share, plus, in each case, all dividends undeclared and unpaid on the Series B preferred stock up to the date fixed for redemption.
Liquidation Preference
The Series B preferred shareholders are entitled to receive, in the event that we are liquidated, dissolved or wound up, whether voluntary or involuntary, $50 per share of Series B preferred stock plus an amount per share equal to all dividends undeclared and unpaid thereon to the date of final distribution to such holders (the “Liquidation Preference”), and no more. Until the Series B preferred shareholders have been paid the Liquidation Preference in full, no payment will be made to any holder of junior stock upon our liquidation, dissolution or winding up. The term “junior stock” means our common stock and any other class of our capital stock issued and outstanding that ranks junior as to the payment of dividends or amounts payable upon liquidation, dissolution and winding up to the Series B preferred stock. As of December 31, 2020, our Series B preferred stock had an aggregate Liquidation Preference of $7.9 million.
Voting Rights
Except in certain circumstances and as otherwise from time to time required by applicable law, the Series B preferred shareholders have no voting rights and their consent is not required for taking any corporate action. When and if the Series B preferred shareholders are entitled to vote, each holder will be entitled to one vote per share.
Conversion
Each share of Series B preferred stock is convertible, in whole or in part at the option of the holders thereof, into shares of common stock at a conversion price of $15.55 per share of common stock (equivalent to a conversion rate of 3.2154 shares of common stock for each share of Series B preferred stock). The right to convert shares of Series B preferred stock called for redemption will terminate at the close of business on the day preceding a redemption date (unless we default in payment of the redemption price).
Provisions with Possible Anti-Takeover Effects
The provisions in our certificate of incorporation, our bylaws, and Delaware law could make it more difficult for a third party to acquire control of us, even if that transaction would be beneficial to shareholders. These impediments include:
| • | the classification of our Board of Directors into three classes serving staggered three-year terms, which makes it more difficult to quickly replace board members; |
| • | the ability of our Board of Directors to issue shares of preferred stock with rights as it deems appropriate without shareholder approval; |
| • | a provision that special meetings of our Board of Directors may be called only by our chief executive officer or a majority of our Board of Directors; |
| • | a provision that special meetings of shareholders may only be called pursuant to a resolution approved by a majority of our entire Board of Directors; |
| • | a prohibition against action by written consent of our shareholders; |
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| • | a provision that our board members may only be removed for cause and by an affirmative vote of at least 80% of the outstanding voting stock; |
| • | a provision that our shareholders comply with advance-notice provisions to bring director nominations or other matters before meetings of our shareholders; |
| • | a prohibition against certain business combinations with an acquirer of 15% or more of our common stock for three years after such acquisition unless the stock acquisition or the business combination is approved by our board prior to the acquisition of the 15% interest, or after such acquisition our board and the holders of two-thirds of the other common stock approve the business combination; and |
| • | a prohibition against our entering into certain business combinations with interested shareholders without the affirmative vote of the holders of at least 80% of the voting power of the then outstanding shares of voting stock. |
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We have registered the shares of common stock to allow the selling shareholders to sell all or a portion of the shares to the public from time to time after the date of this prospectus. Each of the selling shareholders may sell the shares directly or in negotiated transactions through underwriters, broker-dealers or agents.
The shares may be sold pursuant to the methods described below from time to time by or for the account of the selling shareholders on the NYSE, or any other national securities exchange or automated interdealer quotation system on which our common stock is then listed, or otherwise in one or more transactions at:
| • | a fixed price or prices, which may be changed; |
| • | market prices prevailing at the time of sale; |
| • | prices related to prevailing market prices; or |
| • | prices determined on a negotiated or competitive bid basis. |
These sales may be effected in any manner permitted by law, including by any one or more of the following methods:
| • | sales on the NYSE or any national securities exchange or quotation service on which shares of our common stock may be listed or quoted at the time of sale; |
| • | a block trade (which may involve crosses) in which the broker or dealer so engaged will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; |
| • | purchases by a broker or dealer as principal; |
| • | ordinary brokerage transactions and transactions in which the broker solicits purchasers; or |
| • | privately negotiated transactions. |
The SEC may deem the selling shareholders and any broker-dealers or agents who participate in the distribution of the shares to be “underwriters” within the meaning of Section 2(11) of the Securities Act. As a result, the SEC may deem any profits made by the selling shareholders as a result of selling the shares and any discounts, commissions or concessions received by any broker-dealers or agents to be underwriting discounts and commissions under the Securities Act. To our knowledge, there are currently no plans, agreements, arrangements or understandings between the selling shareholders and any underwriter, broker-dealer or agent regarding the sale of the shares.
To comply with the securities laws of some states, if applicable, the selling shareholders may only sell shares in these jurisdictions through registered or licensed brokers or dealers. In addition, in certain jurisdictions, the shares may not be sold unless they have been registered or qualified for sale in these jurisdictions, or an exemption from registration or qualification is available and complied with. The selling shareholders and any other persons participating in the sales of the shares pursuant to this prospectus may be subject to applicable provisions of the Exchange Act and the rules and regulations under the Exchange Act. Each selling shareholder may also sell shares in reliance upon Rule 144 or any other exemption from registration under the Securities Act, provided it meets the criteria and conforms to the requirements of such exemption, rather than under this prospectus.
With respect to a particular offering of the shares, to the extent required by law, we will file from time to time an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration statement of which this prospectus is a part, describing a specific plan of distribution and disclosing the following information:
| • | the amount of shares being offered and sold; |
| • | the respective purchase prices and public offering prices and other material terms of the offering; |
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| • | the names of any participating agents, broker-dealers or underwriters employed by the selling shareholders in connection with such sale; and |
| • | any applicable commissions, discounts, concessions and other items constituting compensation from the selling shareholders. |
If required, we may add transferees, successors and donees by prospectus supplement in instances where the transferee, successor or donee has acquired any Warrants or any shares of our common stock issued or issuable upon the exercise of any Warrants from selling shareholders named in this prospectus after the effective date of this prospectus.
If the selling shareholders sell the shares through underwriters, broker-dealers or agents, we will not be responsible for underwriting discounts, and concessions or commissions (which commissions will not exceed those customary in the types of transactions involved) or agents’ commissions. We have agreed to pay all of the expenses incidental to the registration, offering and sale of the shares to the public.
Each selling shareholder may pledge or grant a security interest in some or all of the shares owned by it, and if it defaults in the performance of its secured obligations, the pledgees or secured parties may offer and sell the shares from time to time pursuant to this prospectus. Each selling shareholder also may transfer and donate shares in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling shareholders for purposes of this prospectus.
There can be no assurances that the selling shareholders will sell, nor are the selling shareholders required to sell, any or all of the securities offered under this prospectus.
We entered into a registration rights agreement for the benefit of the selling shareholders hereunder, to register the shares under applicable federal and state securities laws under specific circumstances and at specific times. The registration rights agreement provides for indemnification of the selling shareholders against specific liabilities in connection with the offer and sale of the shares, including liabilities under the Securities Act.
Under the registration rights agreement, we are obligated to use our commercially reasonable efforts to cause the shelf registration statement to be continuously effective until the earlier of (i) the date on which all of the Warrants have been exercised in full and all of the shares of common stock issued upon such exercise of all of the Warrants have been sold by the selling shareholders under the registration statement of which this prospectus is a part or pursuant to Rule 144 on the NYSE, and (ii) the later of (A) the first (1st) anniversary of the date on which all of the shares of common stock issuable upon such exercise of all of the Warrants have been issued by us after all of the Warrants have been exercised in full (provided that Rule 144 is then available for the resale of any remaining shares of common stock issued upon such exercise of all of the Warrants without any hold period requirement) or, if required, such later period as needed to ensure that Rule 144 is then available for the resale of such shares of common stock without any hold period requirement and without any other restriction thereunder and after all of the restrictive legends have been removed from all book entry positions or certificates representing such shares of common stock issued upon such exercise of all of the Warrants, and (B) if the Warrants have not been exercised in full at or prior to the expiration of the Warrants, the expiration of the term of the Warrants.
Our obligation to keep the registration statement to which this prospectus relates available for use is subject to specified, permitted exceptions set forth in the registration rights agreement. In these cases, we may prohibit offers and sales of the shares pursuant to the registration statement to which this prospectus relates. We may suspend the use of this prospectus for a period not to exceed 30 days and not to exceed an aggregate of 60 days in any twelve-month period.
We will not receive any portion of the proceeds of the sale of the shares offered by this prospectus. Our common stock trades on the NYSE under the symbol “HL.”
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public from the SEC’s web site at http://www.sec.gov or call the SEC at 800-SEC-0330. Information about us, including our SEC filings, is also available through our web site at http:// www.hecla-mining.com. However, information on our web site is not incorporated into this prospectus or our other SEC filings and is not a part of this prospectus or those filings.
This prospectus is part of a registration statement filed by us with the SEC. The exhibits to our registration statement or to documents filed under the Exchange Act and incorporated by reference herein contain the full text of certain contracts and other important documents we have summarized in this prospectus. Since these summaries may not contain all the information that you may find important in deciding whether to purchase the securities that may be offered under this prospectus, you should review the full text of these documents. The registration statement and the exhibits can be obtained from the SEC as indicated above, or from us.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference” the information we file with the SEC. This means that we can disclose important information to you by referring you to another filed document. Any information referred to in this way is considered part of this prospectus from the date we file that document. Any reports filed by us with the SEC after the date of this prospectus and before the date that the offering of the securities by means of this prospectus is terminated will automatically update and, where applicable, supersede any information contained in this prospectus or incorporated by reference in this prospectus. Accordingly, we incorporate by reference the following documents or information filed with the SEC:
| • | Annual Report on Form 10-K for the year ended December 31, 2020, which we filed with the SEC on February 18, 2021; |
| • | Quarterly Report on Form 10-Q for the quarter ended March 31, 2021, which we filed with the SEC on May 6, 2021; |
| • | Current Reports on Form 8-K filed on May 18, 2021, May 14, 2021, May 6, 2021 (relating to dividends), March 1, 2021, February 18, 2021 (relating to entry into an Equity Distribution Agreement), February 18, 2021 (relating to issuance of a news release and declaration of dividends) (Item 8.01 only) and January 22, 2021; |
| • | The description of our capital stock contained in our Form 8-B filed with the SEC on May 6, 1983; |
| • | The information responsive to Part III of Form 10-K for the year ended December 31, 2020, provided in our Definitive Proxy Statement on Schedule 14A filed with the SEC on April 5, 2021; and |
| • | All documents filed by us in accordance with Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the date of this prospectus and before the termination of an offering under this prospectus, other than documents or information deemed furnished and not filed in accordance with SEC rules. |
We will provide to each person, including any beneficial owner, to whom a copy of this prospectus has been delivered, without charge, upon the written or oral request of such person, a copy of any or all of the documents which are incorporated by reference into this prospectus, other than exhibits to such documents, unless such exhibits are specifically incorporated by reference into the information that this prospectus incorporates. You should direct requests for such copies to:
Hecla Mining Company
6500 North Mineral Drive, Suite 200
Coeur d’Alene, Idaho 83815
Attention: Investor Relations
Telephone (208) 769-4100
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Certain legal matters with respect to the legality of the shares offered hereby will be passed upon by David C. Sienko, General Counsel of the Company. Mr. Sienko is employed by Hecla and owns shares of Hecla common stock.
The consolidated financial statements as of December 31, 2020 and 2019, and for each of the three years in the period ended December 31, 2020 and management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2020, incorporated by reference in this prospectus and in the registration statement have been so incorporated in reliance on the reports of BDO USA, LLP, an independent registered public accounting firm, incorporated herein by reference, given on the authority of said firm as experts in auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the estimated expenses, all of which are to be borne by us, in connection with the registration, issuance, and distribution of the securities being registered hereby. All amounts are estimates except the SEC registration fee.
| Securities and Exchange Commission registration fee |
$ | 1,604.15 | ||
| Printing fees and expenses |
$ | 2,000 | * | |
| Accounting fees and expenses |
$ | 15,000 | * | |
| Legal fees and expenses |
$ | 5,000 | * | |
| Miscellaneous |
$ | 5,000 | * | |
| Total |
$ | 28,604.15 | * |
| * | Estimated |
Item 15. Indemnification of Directors and Officers
Delaware General Corporate Law
The Registrant is organized as a corporation under Delaware law and is subject to the provisions of the General Corporation Law of the State of Delaware (the “DGCL”). The following description is intended only as a summary and is qualified in its entirety by reference to the certificate of incorporation of the Registrant, the bylaws of the Registrant and the DGCL.
Pursuant to the DGCL, a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation) by reason of the fact that such person is or was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation in such capacity for another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of such corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The DGCL also permits indemnification by a corporation under similar circumstances for expenses (including attorneys’ fees) actually and reasonably incurred by such persons in connection with the defense or settlement of an action by or in the right of such corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to such corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.
To the extent that a present or former director or officer is successful in the defense of such an action, suit or proceeding (or of any claim, issue or matter therein), the corporation is required by the DGCL to indemnify such person for actual and reasonable expenses (including attorneys’ fees) incurred thereby.
Expenses (including attorneys’ fees) incurred by a director or officer in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid (on terms and conditions satisfactory to the
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corporation) in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such person to repay such amount if it is ultimately determined that such person is not entitled to be so indemnified.
The DGCL provides that the indemnification and advancement of expenses described above shall not be deemed exclusive of other indemnification or advancement of expenses that may be granted by a corporation pursuant to its bylaws, a disinterested director vote, a shareholder vote, an agreement or otherwise.
The DGCL also provides corporations with the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation in a similar capacity for another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability as described above.
Accordingly, the bylaws of the Registrant, to the fullest extent permitted by applicable law, indemnify and hold harmless each person (each, a “Covered Person”) who is or was a director, officer or employee of the Registrant or, while a director, officer or employee of the Registrant, is or was serving at the request of the Registrant as a director, officer or employee or agent of another corporation, or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans. However, the Registrant shall be required to indemnify any person seeking indemnification in connection with a proceeding initiated by such person only if such proceeding was authorized by the Board of Directors or is a proceeding to enforce such person’s claim to indemnification pursuant to the rights granted by the bylaws or otherwise by the Registrant. The Registrant may also enter into one or more agreements with any person which provide for indemnification greater or different than that provided in the Registrant’s certificate of incorporation.
The bylaws of the Registrant also provide that the Registrant shall, to the fullest extent not prohibited by applicable law, pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by such Covered Person to repay all amounts advanced if it should be ultimately determined that such Covered Person is not entitled to be indemnified.
The bylaws of the Registrant also provide that the Registrant’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or non-profit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit entity.
Furthermore, pursuant to the certificate of incorporation of the Registrant, as permitted under the DGCL, a director of the Registrant shall not be personally liable to the Registrant or its shareholders for monetary damages for breach of such person’s fiduciary duty as a director, except for liability (1) for any breach of such person’s duty of loyalty to the Registrant or its shareholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) under Section 174 of the DGCL or (4) for any transaction from which he or she derived an improper personal benefit.
The DGCL permits, and the Registrant has, liability insurance for the benefit of its directors and officers.
Item 16. Exhibits and Financial Statement Schedules
The exhibits to this registration statement are listed on the Exhibit Index to this registration statement, which Exhibit Index is hereby incorporated by reference.
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Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) of this section do not apply if the registration statement is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post- effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining any liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such
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effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
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EXHIBIT INDEX
| * | Filed herewith. |
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SIGNATURES OF ISSUER
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Coeur d’Alene, State of Idaho on May 20, 2021.
| HECLA MINING COMPANY | ||
| By | /s/ Phillips S. Baker, Jr. | |
| Name: | Phillips S. Baker, Jr. | |
| Title: | Chief Executive Officer, President and Director | |
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints David C. Sienko and Michael L. Clary, and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and any related registration statements to be filed pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on the 20th day of May, 2021.
| Signature |
Title | |
| /s/ Phillips S. Baker, Jr. Phillips S. Baker, Jr. |
Chief Executive Officer, President and Director (principal executive officer) | |
| /s/ Russell Lawlar Russell Lawlar |
Senior Vice President, Chief Financial Officer and Treasurer (principal financial and accounting officer) | |
| /s/ Ted Crumley Ted Crumley |
Director | |
| /s/Terry V. Rogers Terry V. Rogers |
Director | |
| /s/ Charles B. Stanley Charles B. Stanley |
Director | |
II-6
Table of Contents
| Signature |
Title | |
| /s/ Stephen F. Ralbovsky Stephen F. Ralbovsky |
Director | |
| /s/ George R. Johnson George R. Johnson |
Director | |
| /s/ Catherine J. Boggs Catherine J. Boggs |
Director | |
| /s/ Alice Wong Alice Wong |
Director | |
II-7
Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into and made effective as of April 29, 2021, 2021 (the “Effective Date”) by and between Hecla Mining Company, a Delaware corporation (“Hecla”), and Waterton Nevada Splitter, LLC, a Nevada limited liability company (“Waterton”).
WHEREAS, on July 20, 2018, Hecla issued to Waterton 2,068,000 warrants to purchase shares of common stock of Hecla at the price of U.S.$8.03 per share pursuant to that Warrant Certificate No. 2018-1 (such warrants, collectively, as the same may be amended from time to time, including any replacement warrants issued in respect thereof, the “Warrants”); and
WHEREAS, concurrently with the execution and delivery of this Agreement, the parties are entering into an amendment to Warrants to grant to the Holders (as defined below) the registration rights set forth in this Agreement in respect of the Registrable Securities (as defined below).
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings given to such terms in the Warrants. The following terms shall have the following meanings for purposes of this Agreement:
“Commission” means the United States Securities and Exchange Commission.
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Holder” means each holder of the Warrants and/or any transferee that acquires all or any portion of the Warrants from time to time and, if such holder or transferee has acquired any Registrable Securities, then Holder shall also be deemed to include the holder of such Registrable Securities, and “Holders” means all of such Persons collectively.
“Majority-in-Interest Holders” means Holders holding a majority of the Registrable Securities.
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an investigation or partial proceeding, such as a deposition), whether commenced or threatened.
“Prospectus” means the prospectus included in the Registration Statement (including, without limitation, a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A under the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by the Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference in such Prospectus.
“Registrable Securities” means all the shares of common stock of Hecla issued or issuable from time to time upon the exercise of the Warrants (and the shares of common stock actually issued in respect of such securities upon any stock splits, stock dividends, or similar transactions); provided, that any such securities shall cease to constitute “Registrable Securities” (and Hecla shall not be required to maintain the effectiveness of any Registration Statement, or file any post-effective amendment, any prospectus supplement or another Registration Statement hereunder with respect thereto) upon the earliest of (i) the date on which such securities are disposed of pursuant to the Registration Statement, (ii) the date on which such securities have been sold pursuant to Rule 144 on the New York Stock Exchange, (iii) the date on which such securities cease to be outstanding and (iv) the expiration of the Registration Period.
“Registration Period” means the period commencing on the date on which the initial Registration Statement becomes effective under the Securities Act and ending on the earlier of (i) the date on which all of the Warrants have been exercised in full and all of the shares of common stock issued upon such exercise of all of the Warrants have been sold by the Holders under the Registration Statement or pursuant to Rule 144 on the New York Stock Exchange, and (ii) the later of (A) the first (1st) anniversary of the date on which all of the shares of common stock issuable upon the exercise of the Warrants have been issued by Hecla after all of the Warrants have been exercised in full (provided that Rule 144 is then available for the resale of any remaining shares of common stock without any hold period requirement) or, if required, such later period as needed to ensure that Rule 144 is then available for the resale of such shares of common stock without any hold period requirement and without any other restriction thereunder and after all of the restrictive legends have been removed from all book entry positions or certificates representing such shares of common stock, and (B) if the Warrants have not been exercised in full at or prior to the expiration of the Warrants, the expiration of the term of the Warrants.
“Registration Statement” means any registration statement contemplated by this Agreement, including (in each case) the Prospectus, amendments and supplements to such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference in such registration statement.
“Rule 144” means Rule 144 under the Securities Act.
“Rule 405” means Rule 405 under the Securities Act.
“Securities Act” means the United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“WKSI” means a well-known seasoned issuer (as defined in Rule 405).
Any reference herein to a Rule promulgated under the Securities Act or the Exchange Act shall mean a reference to such Rule as it may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.
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2. Shelf Registration.
a. As promptly as reasonably practicable but in no event more than thirty (30) days after the Effective Date, Hecla shall prepare and file with the Commission the Registration Statement, which shall be a “resale” automatic shelf registration statement (as defined in Rule 405) providing for the resale of all the Registrable Securities pursuant to an offering to be made on a continuous basis under Rule 415 under the Securities Act, filed on Form S-3 pursuant to General Instruction I.D(1)(d) thereto (or, if Hecla is not a WKSI, a shelf Registration Statement on Form S-3, or, if Form S-3 is not available for the registration of the resale of Registrable Securities, Form S-1 or such other form of registration statement as is then available to Hecla for such registration and acceptable to the Majority-in-Interest Holders). The Registration Statement shall identify Waterton as the initial Holder and/or, if Hecla is so instructed by Waterton in writing, the Registration Statement shall identify as a Holder any transferee that acquires all or any portion of the Warrants from Waterton. The Registration Statement shall also cover such indeterminate number of additional shares of common stock resulting from stock splits, stock dividends or similar transactions of and/or from the Registrable Securities. The Registration Statement shall (i) include only the Registrable Securities and (ii) not contemplate an underwritten offering of the Registrable Securities. No Holder shall be named as an “underwriter” in any Registration Statement without such Holder’s prior written consent.
b. Hecla shall use its commercially reasonable efforts to cause the Registration Statement to become effective under the Securities Act (i) upon filing, if Hecla is a WKSI, or (ii) as soon as reasonably practicable after the filing thereof (but in no event later than the thirtieth (30th) day following the filing thereof, unless the Registration Statement is the subject of a review by the Commission or its staff in which case the 90th day after filing thereof), if Hecla is not a WKSI. Hecla shall use its commercially reasonable efforts to keep the Registration Statement continuously effective under the Securities Act, including by filing any necessary post-effective amendments and Prospectus supplements and by filing one or more replacement or renewal Registration Statements upon the expiration of such Registration Statement, until the expiration of the Registration Period. Subject to Sections 2(e) and 3(c), each Holder shall be entitled, at any time and from time to time when a Registration Statement is effective, to sell any or all of the Registrable Securities covered by such Registration Statement.
c. Hecla shall use its commercially reasonable efforts to remain a WKSI (and not to become an ineligible issuer (as defined in Rule 405)) during the period in which a Registration Statement is effective. If, at any time, Hecla determines that it is not a WKSI, Hecla shall use its commercially reasonable efforts to (i) as applicable, post-effectively amend the automatic shelf registration statement to a shelf Registration Statement on Form S-3 or file a new shelf Registration Statement on Form S-3 or, if such form is not available, Form S-1, (ii) have such shelf Registration Statement declared effective by the Commission as promptly as practicable and (iii) keep such Registration Statement effective until the expiration of the Registration Period. If, at any time, Hecla files a Registration Statement on Form S-3 and thereafter Hecla becomes ineligible to use Form S-3 for secondary sales, Hecla shall use its commercially reasonable efforts to (i) file a Registration Statement on Form S-1 as promptly as practicable to replace the Registration Statement on Form S-3, (ii) have such Registration Statement on Form S-1 declared effective by the Commission as
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promptly as practicable and (iii) cause such Registration Statement on Form S-1 to remain effective until the expiration of the Registration Period and be supplemented and amended to the extent necessary to ensure that such Registration Statement is available or, if not available, that another Registration Statement is available, for the resale of all the Registrable Securities held by the Holders. Upon such date as Hecla becomes eligible to use Form S-3 for secondary sales, Hecla shall use its commercially reasonable efforts to (i) file a Registration Statement on Form S-3 as promptly as practicable to replace the applicable Registration Statement on Form S-1, (ii) have such shelf Registration Statement declared effective by the Commission as promptly as practicable and (iii) cause such Registration Statement to remain effective until the expiration of the Registration Period and be supplemented and amended to the extent necessary to ensure that such Registration Statement is available or, if not available, that another Registration Statement is available, for the resale of all the Registrable Securities thereunder held by the Holders.
d. If the number of shares available under any Registration Statement is insufficient to cover all of the Registrable Securities required to be covered by such Registration Statement, Hecla shall amend such Registration Statement (if permissible) or file with the Commission a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities not covered by the initial Registration Statement, in each case as soon as reasonably practicable, but in any event not later than fifteen (15) days after the necessity therefor arises. Hecla shall use its commercially reasonable efforts to cause such amendment to such Registration Statement and/or such new Registration Statement (as the case may be) to become effective under the Securities Act (i) upon filing, if Hecla is a WKSI, or (ii) as soon as reasonably practicable after the filing thereof (but in no event later than the thirtieth (30th) day following the filing thereof unless the Registration Statement is the subject of a review by the Commission or its staff in which case the 90th day after filing thereof), if Hecla is not a WKSI.
e. Hecla may suspend the disposition of Registrable Securities by the Holders pursuant to any Registration Statement up to two (2) times during any 365-day period, with any such suspension not to exceed thirty (30) days for each suspension, by providing notice to the Holders. Each Holder agrees to hold in confidence the fact that it has received such notice and any communication related thereto; provided, that Hecla shall not give reasons for such suspension should such reasons constitute material non-public information.
3. Hecla’s Obligations. In connection with any Registration Statement and subject to Section 2(e), Hecla shall:
a. within a reasonable time prior to the filing of any Registration Statement, any Prospectus, any amendment to any Registration Statement, any amendment or supplement to a Prospectus or any issuer free writing prospectus covering Registrable Securities, provide copies of such documents to the Holders and their respective counsel, fairly consider such reasonable changes in any such documents prior to the filing thereof as the Holders or their counsel may request, and make Hecla’s representatives available for discussion of such documents as may be reasonably requested by the Holders;
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b. use its commercially reasonable efforts to cause any Registration Statement and the related Prospectus and any amendment or supplement thereto, as of the effective date of such Registration Statement, amendment or supplement and during the distribution of the registered Registrable Securities (x) to comply in all material respects with the requirements of the Securities Act and (y) not to contain any 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 not misleading;
c. notify the Holders promptly, and, if requested by any Holder, confirm such advice in writing, (i) when any Registration Statement has become effective and when any post-effective amendments and supplements thereto become effective if such Registration Statement or post-effective amendment is not automatically effective upon filing pursuant to Rule 462 under the Securities Act, (ii) of the issuance by the Commission or any U.S. state securities authority of any stop order, injunction or other order or requirement suspending the effectiveness of any Registration Statement or the initiation of any proceedings for that purpose, (iii) if Hecla receives any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, and (iv) of the happening of any event during the period any Registration Statement is effective as a result of which such Registration Statement or the related Prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided that the Holders, upon receiving written notice of an event described in clauses (ii) to (iv) of this Section 3.c, shall discontinue (and direct any other Person making offers and sales of Registrable Securities on their behalf to discontinue) offers and sales of Registrable Securities pursuant to any Registration Statement (other than those pursuant to a plan in effect prior to such event and that complies with Rule 10b5-1 under the Exchange Act) until it is advised in writing by Hecla that the use of the applicable Prospectus may be resumed and is furnished with an amended or supplemented Prospectus;
d. if requested by any Holder, promptly incorporate in a prospectus supplement or post-effective amendment such information as such Holder reasonably requests to be included therein, including, without limitation, naming such Holder as a selling security holder and the number of Registrable Securities being sold by such Holder, and Hecla shall make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters incorporated in such prospectus supplement or post-effective amendment;
e. furnish the Holders’ counsel with copies of any written correspondence with the Commission or any state securities authority relating to the Registration Statement or Prospectus, and use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement at the earliest possible time;
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f. use its commercially reasonable efforts to cause all Registrable Securities (i) to be qualified for inclusion in or listed on The New York Stock Exchange or any securities exchange on which Hecla’s shares of common stock are then so qualified or listed if so requested by the Majority-in-Interest Holders and (ii) to be registered and qualified under such other securities or state “blue sky” laws of such jurisdictions as any Holder shall reasonably request in writing, and do all other acts and things which may be reasonably necessary or advisable to enable such Holder to consummate the disposition of the Registrable Securities in such jurisdictions (including keeping such registration or qualification in effect for so long as the applicable Registration Statement remains in effect), except that in no event shall Hecla be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this Section 3.f, be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction;
g. use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, including making available to its security holders an earnings statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act (or any similar provision then in force); and
h. hold in confidence and not make any disclosure of information concerning each Holder provided to Hecla unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction, (iv) such information has been made generally available to the public other than by disclosure in violation of this Agreement or (v) such information has been furnished by the Holder to Hecla for inclusion in the Registration Statement pursuant to Section 4 of this Agreement; Hecla shall, upon learning that disclosure of such information concerning a Holder is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Holder and allow such Holder, at such Holder’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
4. Information from the Holders. Each Holder shall furnish to Hecla such information (i) regarding itself, its ownership of Registrable Securities and its proposed distribution of such Registrable securities, in each case as is required to be included in any Registration Statement, and (ii) as Hecla may from time to time reasonably request in writing.
5. Registration Expenses. All fees and expenses incident to the performance of or compliance with this Agreement by Hecla, except as and to the extent specified in this Section 5, shall be borne by Hecla whether or not the Registration Statement is filed or becomes effective and whether or not any Registrable Securities are sold pursuant to the Registration Statement. The fees and expenses referred to in the foregoing sentence shall include, without limitation, and to the extent applicable (i) all registration and filing fees (including, without limitation, fees and expenses (A) with respect to filings required to be made with each securities exchange or market
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on which Registrable Securities are required hereunder to be listed, if any, (B) with respect to filing fees required to be paid to the Financial Industry Regulatory Authority and (C) in compliance with state securities or “blue sky” laws), (ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities and of printing prospectuses if the printing of prospectuses is requested by Hecla), (iii) messenger, telephone and delivery expenses, (iv) Securities Act liability insurance, if Hecla elects to purchase such insurance and (v) fees and expenses of all other Persons retained by Hecla in connection with the consummation of the transactions contemplated by this Agreement, including, without limitation, Hecla’s independent public accountants. In addition, Hecla shall be responsible for all of its internal expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit, the fees and expenses incurred in connection with the listing of the Registrable Securities on the New York Stock Exchange or, if the shares of common stock are not then listed on the New York Stock Exchange, on any other securities exchange on which the shares of common stock are then listed. Hecla shall not be responsible for any brokers’ and dealers’ discounts and commissions, transfer taxes or other similar fees incurred by any Holder in connection with the sale of the Registrable Securities.
6. Indemnification
a. Indemnification by Hecla. Hecla shall, notwithstanding any termination of this Agreement, indemnify and hold harmless the Holders, their respective officers, directors, managers, employees and affiliates, each Person that controls any Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, managers and employees of each such controlling Person (collectively, the “Holders Indemnified Parties”), to the full extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable costs of preparation and reasonable attorneys’ and reasonable expert witnesses’ fees) and expenses (collectively, “Losses”) (as determined by a court of competent jurisdiction in a final judgment not subject to appeal or review), to which such Holders Indemnified Parties may become subject under the Securities Act or otherwise, arising out of or relating to any violation of securities laws or untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or form of prospectus or supplement thereto, in the light of the circumstances under which they were made) not misleading, except to the extent, but only to the extent, that such untrue statements or omissions are based solely upon information regarding any Holder furnished in writing to Hecla by such Holder expressly for use therein. Hecla shall notify the Holders promptly of the institution, threat or assertion of any Proceeding of which Hecla is aware in connection with the transactions contemplated by this Agreement. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any Holder, the directors, managers and officers of any Holder, or controlling Person of any Holder, and shall survive the transfer of such securities held by any Holder.
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b. Indemnification by the Holders. Each Holder, severally and not jointly with any other Holder, shall indemnify and hold harmless Hecla, its directors, managers, officers, affiliates and employees, each Person that controls Hecla (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, managers, officers, affiliates and employees of such controlling Person (collectively, the “Hecla Indemnified Parties”), to the full extent permitted by applicable law, from and against all Losses (as determined by a court of competent jurisdiction in a final judgment not subject to appeal or review), to which the Hecla Indemnified Parties may become subject under the Securities Act or otherwise, arising solely out of or based solely upon any untrue statement of a material fact contained in any Registration Statement, any Prospectus, or any form of prospectus, or in any amendment or supplement thereto, or arising solely out of or based solely upon any omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or form of prospectus or supplement thereto, in the light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that such untrue statement or omission is contained in any information so furnished in writing by such Holder to Hecla specifically for inclusion in the Registration Statement or such Prospectus. Notwithstanding anything to the contrary contained herein, each Holder shall be liable under this Section 6.b for only that amount as does not exceed the net proceeds to such Holder as a result of the sale of Registrable Securities pursuant to such Registration Statement. No Holder shall be liable for any Losses under this Section 6.b where such Holder furnished in writing to Hecla information expressly for use in, and within a reasonable period of time prior to the effectiveness of, the Registration Statement or any amendments or supplements thereto which corrected or made not misleading information previously provided to Hecla.
c. Conduct of Indemnification Proceedings.
i. If any Proceeding shall be brought or asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”), such Indemnified Party promptly shall notify the Person from whom indemnity is sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall be entitled to assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all reasonable fees and expenses incurred in connection with defense thereof; provided, that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have materially adversely prejudiced the Indemnifying Party.
ii. An Indemnified Party shall have the right to employ a single separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party
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unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses; or (2) the Indemnifying Party shall have failed promptly to assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding; or (3) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and such parties shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and the reasonable fees and expenses of no more than one separate counsel shall be at the expense of the Indemnifying Party). The Indemnifying Party shall not be liable for any settlement of any such Proceeding effected without its written consent, which consent shall not be unreasonably withheld or delayed. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Proceeding in respect of which any Indemnified Party is a party and indemnity has been sought hereunder, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding.
iii. All fees and expenses of the Indemnified Party (including reasonable fees and expenses incurred in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section 6) shall be paid to the Indemnified Party, as incurred, within thirty (30) days of written notice thereof to the Indemnifying Party (provided, that the Indemnified Party shall reimburse all such fees and expenses to the extent it is finally judicially determined that such Indemnified Party is not entitled to indemnification hereunder).
d. Contribution. To the extent any indemnification is prohibited or limited by law, then each Indemnifying Party shall contribute to the amount paid or payable by such Indemnified Party, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include, subject to the limitations set forth in this Agreement, any reasonable attorneys’ or other fees or expenses incurred by such party in connection with any Proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in this Section was available to such party in accordance with its terms. Notwithstanding the provisions of this Section 6, except in the case of fraud or willful
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misconduct as determined by a final, nonappealable judicial determination, no Holder shall be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds actually received by such Holder from the applicable sale of the Registrable Securities subject to the claim exceeds the amount of any damages that such Holder has otherwise been required to pay, or would otherwise be required to pay under Section 6.b, by reason of such untrue or alleged untrue statement or omission or alleged omission.
e. Survival. The agreements contained in this Section 6 shall survive the transfer of the Registrable Securities by a Holder and sale of all of the Registrable Securities pursuant to any registration statement and shall remain in full force and effect, regardless of any investigation made by or on behalf of any the Holders Indemnified Parties.
7. Rule 144. With a view to making available to each Holder the benefits of Rule 144 or any other similar rule or regulation of the Commission that may at any time permit the Holders to sell Hecla’s securities to the public without registration pursuant to Rule 144, provided that a Holder holds any Registrable Securities which are eligible for resale under Rule 144 and such information is necessary in order for such Holder to sell such Registrable Securities pursuant to Rule 144, Hecla agrees to: (a) make and keep public information available, as those terms are understood and defined in Rule 144; (b) file with the Commission in a timely manner all reports and other documents required of Hecla under the Securities Act and the Exchange Act so long as Hecla remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144; and (c) furnish to such Holder, promptly upon request, (i) a written statement by Hecla that it has complied with the reporting requirements of Rule 144, the Securities Act and the Exchange Act applicable to Hecla and (ii) a copy of the most recent annual or quarterly report of Hecla and such other reports and documents so filed by Hecla (unless such report is publicly available on the Commission’s website).
8. No Inconsistent Agreements. Hecla shall not enter into any such agreement with respect to its securities that violates the rights granted to the Holders in this Agreement.
9. Remedies. In the event of a breach by Hecla or any Holder of their respective obligations under this Agreement, the non-breaching party, in addition to being entitled to exercise all rights granted by law and under this Agreement, will be entitled to seek specific performance of its rights under this Agreement. Hecla and the Holders acknowledge and agree that monetary damages may not provide adequate compensation for any losses incurred by reason of a breach by either of them of any provisions of this Agreement and each further agrees that, in the event of any action for specific performance in respect of such breach, it shall waive the defense that a remedy at law would be adequate. The remedies provided herein are cumulative and not exclusive of any remedies provided by law.
10. Amendments and Waivers. The provisions of this Agreement may not be amended, modified or supplemented unless the same shall be in writing and signed by Hecla and the Majority-in-Interest Holders. Each provision in this Agreement may only be waived by written instrument making specific reference to this Agreement signed by the party against whom enforcement of any such provision so waived is sought. The waiver by any party of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing
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waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
11. Successors and Assigns.
a. This Agreement shall be binding upon and inure to the benefit of Hecla and the Holders and their successors and permitted assigns. Hecla shall not (except by merger) assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the Majority-in-Interest Holders. All or any portion of any Holder’s rights under this Agreement shall be assignable by such Holder to any transferee of all or any portion of such Holder’s Registrable Securities or Warrants, provided that such Holder delivers to Hecla a written instrument executed by such transferee pursuant to which such transferee agrees to be bound by the provisions of this Agreement applicable to a Holder with respect to the Registrable Securities or Warrants that have been assigned to such transferee.
b. If Hecla engages in any Fundamental Transaction as a result of which the Warrants and/or the Registrable Securities are converted, exchanged or become exercisable into securities of another Person (including, without limitation, any Successor Entity), then Hecla shall cause the issuer of such securities to promptly (and in any event prior to completion of the Fundamental Transaction) enter into an agreement to provide to the Holders the same registration rights and such other rights and obligations provided by Hecla hereunder to the Holders upon consummation of such Fundamental Transaction. To the extent that such issuer was bound by registration rights obligations that would conflict with any provisions of this Agreement, Hecla shall use its commercially reasonable efforts to modify any such “inherited” registration rights obligations so as not to interfere in any material respects with the rights provided under this Agreement.
12. Entire Agreement. This Agreement, together with the Warrants, constitutes the entire agreement of the parties with respect to the registration rights contemplated hereby, and supersedes all prior agreements and undertakings, both written and oral, among the parties or between any of them, with respect to the subject matter hereof.
13. Governing Law; Consent to Jurisdiction. This Agreement shall be governed by the laws of the State of New York, regardless of any principles of conflicts of laws. Each party irrevocably and unconditionally (a) submits to the exclusive jurisdiction of the courts of the State of New York sitting in New York County (or, if the courts of the State of New York sitting in New York County decline to accept jurisdiction over a particular matter, the United States District Court for the Southern District of New York), and any appellate court from any thereof, in any Proceeding arising out of or relating to this Agreement and (b) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such Proceeding in any such court.
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14. Waiver of Jury Trial. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. ANY PARTY MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED FOR AGREEMENT AMONG THE PARTIES TO WAIVE TRIAL BY JURY AND THAT ANY PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
15. Severability. If any provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible, provided that any such modification does not affect the economic or legal substance of this Agreement and the transactions contemplated hereby in a manner adverse to any party.
16. Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same instrument. This Agreement may be delivered by .pdf transmission.
[Signature page follows.]
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IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be signed, all as of the date first written above.
| HECLA MINING COMPANY | ||
| By: | /s/ David C. Sienko | |
| Name: | David C. Sienko | |
| Title: | Vice President and General Counsel | |
| WATERTON NEVADA SPLITTER, LLC | ||
| By: | /s/ Isser Elishis | |
| Name: | Isser Elishis | |
| Title: | Manager | |
[Signature Page to Registration Rights Agreement]
Exhibit 5.1
May 20, 2021
Hecla Mining Company
6500 North Mineral Drive
Suite 200
Coeur d’Alene, Idaho 83815-9408
Hecla Mining Company
Registration Statement on Form S-8
Ladies and Gentlemen:
I am the General Counsel for Hecla Mining Company, a Delaware corporation (the “Company”), and have acted as securities counsel to the Company in connection with the preparation and filing of the Registration Statement on Form S-8 of the Company (the “Registration Statement”), filed on or about the date hereof with the Securities and Exchange Commission (the “Commission”), relating to the registration under the Securities Act of 1933, as amended (the “Act”), for resale from time to time by the selling shareholders, of up to 1,500,000 shares of the Company’s common stock (the “Shares”) available for issuance in connection with the Hecla Mining Company Key Employee Deferred Compensation Plan (the “Plan”).
The Shares are issuable by the Company to the selling shareholders upon the exercise by the selling shareholders of 2,068,000 outstanding warrants (the “Warrants”) to purchase one share of our common stock. On April 29, 2021, the Company entered into a registration rights agreement Waterton Nevada Splitter, LLC (“Waterton”) pursuant to which the Company agreed to file the Registration Statement in order to register the Shares for resale by Waterton or its transferees that acquire all or any portion of the Warrants from time to time or any of the Shares issued or issuable from time to time upon the exercise of the Warrants.
In arriving at the opinions expressed below, I have examined originals, or copies certified or otherwise identified to my satisfaction as being true and complete copies of the originals, of such agreements, instruments and documents, corporate records, certificates of officers of the Company and of public officials and other instruments as I have deemed necessary or advisable to enable me to render these opinions. In my examination, I have assumed, without independent investigation, the genuineness of all signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to me as originals and the conformity to original documents of all documents submitted to me as copies. As to any facts material to these opinions, I have relied to the extent I deemed appropriate and without independent investigation upon statements and representations of officers and other representatives of the Company and others.
Based upon the foregoing, and subject to the assumptions, exceptions, qualifications and limitations set forth herein, I am of the opinion that when issued, delivered and paid for in accordance with the terms and conditions of the Warrants, the Shares will be validly issued, fully paid and non-assessable.
The opinions and other matters in this letter are qualified in their entirety by, and subject to, the following:
| i. | I express no opinion as to the laws of any jurisdiction other than the Included Laws. For purposes of this opinion, the term “Included Laws” means the Laws of the State of Delaware that are, in my experience, normally applicable to the matters covered by my opinion, including the Delaware General Corporation Law, any applicable provisions of the Constitution of the State of Delaware, and applicable judicial decisions. |
| ii. | This letter and the matters addressed herein are as of the date hereof, and I undertake no, and hereby disclaim any, obligation to advise you of any change in any matter set forth herein, whether based on a change in the law, a change in any fact relating to the Company or any other person or entity, including governmental authorities, or any other circumstance. This opinion letter is limited to the matters expressly stated herein and no opinions are to be inferred or may be implied beyond the opinions expressly set forth herein. |
I consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement and to the references made to me under the caption “Legal Matters” in the prospectus forming a part of the Registration Statement. In giving this consent, I do not admit that I am within the category of persons whose consent is required by Section 7 of the Act.
Very truly yours,
/s/ David C. Sienko
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
Hecla Mining Company
Coeur D’Alene, Idaho
We hereby consent to the incorporation by reference in the Prospectus constituting a part of this registration statement of our reports dated February 18, 2021, relating to the consolidated financial statements and the effectiveness of internal control over financial reporting of Hecla Mining Company (the “Company”) appearing in the Company’s Annual Report on Form 10-K for the year ended December 31, 2020.
We also consent to the reference to us under the caption “Experts” in the Prospectus.
/s/ BDO USA, LLP
Spokane, Washington
May 20, 2021