Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic): (a) all covenants and agreements of Primero under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Primero in all material respects and First Majestic shall have received a certificate of Primero addressed to First Majestic and dated the Effective Date, signed on behalf of Primero by two directors or senior executive officers of Primero, confirming the same as at the Effective Date; (b) (i) the representations and warranties of Primero in Sections 3.1.1, 3.1.2, 3.1.3, and 3.1.4 shall be true and correct in all material respects as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic); and (ii) the representations and warranties of Primero set forth in Section 3.1 (other than those referenced in clause (i) above) shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic), except where any failure or failures of such representations and warranties referenced in this clause (ii) to be so true and correct would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Primero, and First Majestic shall have received a certificate of Primero addressed to First Majestic and dated the Effective Date, signed on behalf of Primero by two directors or senior executive officers of Primero, confirming the same as at the Effective Date; (c) between the date hereof and the Effective Date, there shall not have occurred a Material Adverse Change to Primero; (d) holders of more than 10% of the issued and outstanding Primero Shares shall not have exercised the Dissent Rights in respect of the Arrangement; (e) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success: (i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from any of the Parties any damages that are material in relation to Primero; (ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Primero or any Primero Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Primero or any Primero Subsidiary; (iii) seeking to impose limitations on the ability of First Majestic to acquire or hold or exercise full rights of ownership of any Primero Shares, including the right to vote the Primero Shares on all matters properly presented to the shareholders of Primero; or (iv) which otherwise is reasonably likely to have a Material Adverse Effect on Primero or First Majestic, except as referred to in Schedule 5.2 of the Primero Disclosure Letter; (f) all consents, approvals, authorizations and waivers set forth in Schedule 5.2 of the Primero Disclosure Letter, shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably; and (g) Primero shall have provided to First Majestic, on or before the Effective Date, written resignations and mutual releases effective as of the Effective Time, from all directors and officers of Primero and such directors and officers of the Primero Subsidiaries as First Majestic may request. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material failure by First Majestic in complying with its obligations hereunder.
Appears in 2 contracts
Samples: Arrangement Agreement (Primero Mining Corp), Arrangement Agreement (First Majestic Silver Corp)
Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Primero SilverCrest and SpinCo under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Primero SilverCrest and SpinCo in all material respects and First Majestic shall have received a certificate of Primero SilverCrest addressed to First Majestic and dated the Effective Date, signed on behalf of Primero SilverCrest by two directors or senior executive officers of PrimeroSilverCrest, confirming the same as at the Effective Date;
(b) (i) the representations and warranties of Primero SilverCrest in Sections 3.1.1, 3.1.2, 3.1.3, 3.1.5, 3.1.17, and 3.1.4 3.1.40 shall be true and correct in all material respects as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic); and (ii) the representations and warranties of Primero SilverCrest set forth in Section 3.1 (other than those referenced in clause (i) above) and the representations and warranties of SpinCo in Section 3.3 shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic), except where any failure or failures of such representations and warranties referenced in this clause (ii) to be so true and correct would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on PrimeroSilverCrest, and First Majestic shall have received a certificate of Primero SilverCrest addressed to First Majestic and dated the Effective Date, signed on behalf of Primero SilverCrest by two directors or senior executive officers of PrimeroSilverCrest, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to PrimeroSilverCrest;
(d) the SilverCrest Board and the board of directors of SpinCo shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by SilverCrest and SpinCo, to permit the consummation of the Arrangement and the issue of the SpinCo Shares;
(e) holders of more than 105% of the issued and outstanding Primero SilverCrest Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(ef) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from any of the Parties any damages that are material in relation to PrimeroSilverCrest;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Primero SilverCrest or any Primero SilverCrest Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Primero SilverCrest or any Primero SilverCrest Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold or exercise full rights of ownership of any Primero SilverCrest Shares, including the right to vote the Primero SilverCrest Shares on all matters properly presented to the shareholders of PrimeroSilverCrest;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of SilverCrest or any SilverCrest Subsidiary; or
(ivv) which otherwise is reasonably likely to have a Material Adverse Effect on Primero SilverCrest or First Majestic, except as referred to in Schedule 5.2 of the Primero Disclosure Letter;
(fg) all consents, approvals, authorizations and waivers set forth in Schedule 5.2 of any Persons (other than Governmental Entities) which are required or necessary for the completion of the Primero Disclosure LetterArrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under SilverCrest’s Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably, including the BNS Consent;
(h) completion of the transaction contemplated under the SilverCrest Conveyance Agreement, including the payment of the SilverCrest Subscription Amount and the transfer of the SilverCrest Transferred Assets to and the assumption of the SilverCrest Transferred Liabilities by, SpinCo or any subsidiary of SpinCo on or prior to the Effective Date;
(i) the cost sharing agreement between SilverCrest and Goldsource Mines Inc. dated January 1, 2011 shall have been terminated effective as of the Effective Time on terms satisfactory to First Majestic;
(j) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(gk) Primero SilverCrest shall have provided to First Majestic, on or before the Effective Date, written resignations and mutual releases effective as of the Effective Time, from all directors and officers of Primero SilverCrest and such directors and officers of the Primero SilverCrest Subsidiaries as First Majestic may request. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material failure default by First Majestic in complying with its obligations hereunder.
Appears in 2 contracts
Samples: Arrangement Agreement (Silvercrest Mines Inc), Arrangement Agreement (First Majestic Silver Corp)
Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, fulfillment of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First MajesticMajestic and any one or more of which, if not satisfied or waived, will relieve First Majestic of any obligation under this Agreement):
(a) all covenants and agreements of Primero Normabec under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Primero Normabec in all material respects and First Majestic shall have received a certificate of Primero addressed to First Majestic and dated the Effective Date, signed on behalf of Primero by two directors or senior executive officers of Primero, confirming the same as at the Effective Daterespects;
(b) (i) the representations and warranties of Primero Normabec contained in Sections 3.1.1, 3.1.2, 3.1.3, and 3.1.4 this Agreement shall be true and correct in all material respects as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic); and (ii) the representations and warranties of Primero set forth in Section 3.1 (other than those referenced in clause (i) above) shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic), except where any failure or failures of such representations and warranties referenced in this clause (ii) to be so true and correct would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Primero, and First Majestic shall have received a certificate of Primero Normabec addressed to First Majestic and dated the Effective Date, signed on behalf of Primero Normabec by two directors or senior executive officers of PrimeroNormabec, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to PrimeroNormabec; provided that a reduction in the market price or value of the Normabec Shares on the TSXV or any other stock exchange or quotation system on which the Normabec Shares may be listed or posted for trading shall not, in and of itself, constitute such a Material Adverse Change;
(d) the board of directors of Normabec shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Normabec, to permit the consummation of the Arrangement;
(e) the board of directors of Normabec shall have made and shall not have withdrawn or modified or amended, in any material respect, prior to the Normabec Meeting, an affirmative recommendation that the holders of Normabec Shares approve the Arrangement;
(f) holders of more than 105% of the issued and outstanding Primero Normabec Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(e) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from any of the Parties any damages that are material in relation to Primero;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Primero or any Primero Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Primero or any Primero Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold or exercise full rights of ownership of any Primero Shares, including the right to vote the Primero Shares on all matters properly presented to the shareholders of Primero; or
(iv) which otherwise is reasonably likely to have a Material Adverse Effect on Primero or First Majestic, except as referred to in Schedule 5.2 of the Primero Disclosure Letter;
(fg) all consents, approvals, authorizations and waivers set forth in Schedule 5.2 of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Primero Arrangement and other transactions contemplated hereby (including all those consents, approvals, authorizations and waivers required under the Material Agreements and referred to in the Normabec Disclosure Letter, Schedule) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder;
(i) Normabec shall have prepared in accordance with generally accepted accounting principles, applied on a basis consistent with previous years, and filed on SEDAR the 2009 Financial Statements and the 2009 Financial Statements shall be correct and complete and present fairly the consolidated financial position of Normabec as at the date thereof and the consolidated results of its operations as cash flows for the period then ended;
(j) Xxxxxx Xxxxxx shall have sold the shares which he owns in each of the Normabec Subsidiaries to such person as First Majestic may direct effective as of the Effective Time, for a purchase price of $1.00;
(k) Xxxxxx Xxxxxx and Gestion Somiray Inc. shall have entered into a settlement agreement (the “Xxxxxx Settlement”) with First Majestic and Normabec on terms reasonably satisfactory to First Majestic [REDACTED INFORMATION]; and
(gl) Primero Normabec shall have provided to First Majestic, on or before the Effective Date, written resignations and mutual releases effective as of the Effective Time, from all directors other directors, administrators and officers of Primero Normabec and such directors and officers of the Primero Normabec Subsidiaries as First Majestic may request(other than Newco). First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for a non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material failure default by First Majestic in complying with its obligations hereunder.
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