Covenants of Target Relating to the Arrangement. Target shall and shall cause its subsidiaries to perform all obligations required or desirable to be performed by Target or any of its subsidiaries under this Agreement, co-operate with Acquiror in connection therewith, and do or cause to be done all such further acts and things as may be necessary or desirable in order to consummate and make effective, as soon as reasonably practicable, the transactions contemplated in this Agreement, including the execution and delivery of such documents as the other Party hereto may reasonably require. Without limiting the generality of the foregoing, Target shall and, where applicable, shall cause its subsidiaries to: (a) provide to Acquiror, at least two Business Days prior to the Effective Date, a statement of all intercompany payables that will be owing by Spinco or any of its subsidiaries to Target or any of the Material Subsidiaries immediately prior to the Effective Time; (b) subject to obtaining confirmation that insurance coverage is maintained as contemplated in Section 7.5, use commercially reasonable efforts to cause to be delivered to Acquiror on the Effective Date resignations, effective on the Effective Date or at such other time and in the manner requested by Acquiror, of the directors and officers of Target or its subsidiaries designated in writing by Acquiror, with a nominee of Acquiror to be appointed to the Target Board immediately after each such resignation; (c) use commercially reasonable efforts to assist Acquiror in obtaining the Key Regulatory Approvals and use commercially reasonable efforts to obtain any other required approvals from Governmental Entities relating to Target or any of its subsidiaries which are typically applied for by a target company and, in doing so, keep Acquiror informed as to the status of the proceedings related to obtaining such approvals, including providing Acquiror with copies of all related applications and notifications, in draft form (except where such material is confidential in which case it will be provided (subject to applicable Laws) to Acquiror’s outside counsel on an “external counsel” basis), in order for Acquiror to provide its comments thereon, which shall be given due and reasonable consideration; (d) use commercially reasonable efforts to obtain as soon as practicable following execution of this Agreement all third party consents, approvals and notices required under any of the Material Contracts, including all Key Third Party Consents; (e) at the request of Acquiror, take all commercially reasonable steps to ensure that, on or prior to the Effective Date, the Target Exploration Properties and the Spinco Assets have been duly transferred to Spinco and Spinco has assumed all of the Spinco Liabilities in a manner satisfactory to the Acquiror, acting reasonably; provided that taking any such step does not itself result in, and would not reasonably be expected to result in, any Taxes being imposed on, or any adverse Tax on or being suffered by, the Target Optionholders or the Target Shareholders; (f) defend all lawsuits or other legal, regulatory or other proceedings against Target challenging or affecting this Agreement or the consummation of the transactions contemplated hereby; and (g) allow representatives of Acquiror (including legal and financial advisors) to attend the Target Meeting.
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Samples: Arrangement Agreement (Newmont Mining Corp /De/), Arrangement Agreement (Fronteer Gold Inc)
Covenants of Target Relating to the Arrangement. Target shall shall, and shall cause its subsidiaries to to, perform all obligations required or desirable to be performed by Target or any of its subsidiaries under this Agreement, co-operate cooperate with Acquiror Purchaser in connection therewith, and do or cause to be done all such further other acts and things as may be necessary or desirable in order to consummate and make effective, as soon as reasonably practicable, effective the transactions contemplated in this AgreementAgreement and, including the execution and delivery of such documents as the other Party hereto may reasonably require. Without without limiting the generality of the foregoing, Target shall and, where applicable, shall cause its subsidiaries to:
(a) provide to Acquiror, at least two Business Days prior to the Effective Date, a statement of all intercompany payables that will be owing by Spinco or any of its subsidiaries to Target or any of the Material Subsidiaries immediately prior to the Effective Time;
(b) subject to obtaining confirmation that insurance coverage is maintained as contemplated in Section 7.57.6.1, and provided that the Effective Date has occurred, it shall use commercially its reasonable commercial efforts to cause such members of the Target Board to be delivered to Acquiror on resign as Purchaser may require, at the Effective Date resignations, effective on the Effective Date or at such other time and in the manner requested by AcquirorXxxxxxxxx, as of the directors and officers of Target or its subsidiaries designated in writing by AcquirorEffective Date, with a nominee of Acquiror Purchaser to be appointed to the Target Board immediately after each such resignation;
(cb) use commercially reasonable efforts to assist Acquiror in obtaining the Key Regulatory Approvals apply for and use its commercially reasonable efforts to obtain any other required approvals from Governmental Entities all Key Regulatory Approvals relating to Target or any of its subsidiaries which are typically applied for by a target company and, in doing so, keep Acquiror Purchaser reasonably informed as to the status of the proceedings related to obtaining such approvalsthe Key Regulatory Approvals, including providing Acquiror Purchaser with copies of all related applications and notifications, in draft form (except where such material is confidential sufficiently in which case it will be provided (subject advance of filing to applicable Laws) to Acquiror’s outside counsel on an “external counsel” basis), in order for Acquiror allow Purchaser the opportunity to provide its comments thereon, which shall be given due and reasonable considerationnot participate in any meetings or material conversations with Governmental Entities without consulting with Purchaser in advance and to the extent permitted by such Governmental Entity, give Purchaser the opportunity to attend and participate in any communications or meetings;
(dc) use its commercially reasonable efforts to obtain as soon as practicable following execution of this Agreement all third party consents, approvals and notices required under any of the Material Contracts, including all Key Third Party Consents;
(e) at the request of Acquiror, take all commercially reasonable steps to ensure that, on or prior to the Effective Date, the Target Exploration Properties and the Spinco Assets have been duly transferred to Spinco and Spinco has assumed all of the Spinco Liabilities in a manner satisfactory to the Acquiror, acting reasonably; provided that taking any such step does not itself result in, and would not reasonably be expected to result in, any Taxes being imposed on, or any adverse Tax on or being suffered by, the Target Optionholders or the Target Shareholders;
(fd) defend all lawsuits or other legal, regulatory or other proceedings against Target challenging or affecting this Agreement or the consummation of the transactions contemplated hereby;
(e) until the earlier of the Effective Time and termination of this Agreement, subject to applicable Law, make available and cause to be made available to Purchaser, and the agents and advisors thereto, information reasonably requested by Purchaser for the purposes of preparing, considering and implementing integration and strategic plans for the combined businesses of Purchaser and Target following the Effective Date and confirming the representations and warranties of Target set out in this Agreement; and
(gf) allow representatives of Acquiror Purchaser (including legal and financial advisors) to attend the Target MeetingMeeting and allow officers of Purchaser to speak to any motion relating to the Arrangement Resolution.
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Covenants of Target Relating to the Arrangement. Target shall covenants and shall cause its subsidiaries to perform all obligations required or desirable to be performed by Target or any of its subsidiaries under this Agreementagrees that, co-operate with Acquiror in connection therewith, and do or cause to be done all such further acts and things except as may be necessary or desirable in order to consummate and make effective, as soon as reasonably practicable, the transactions contemplated in this AgreementAgreement or as otherwise required by Applicable Law, including during the execution and delivery of such documents as the other Party hereto may reasonably require. Without limiting the generality of the foregoing, Target shall and, where applicable, shall cause its subsidiaries toInterim Period:
(a) provide it shall not take any action, refrain from taking any action or permit any action to Acquirorbe taken, at least two Business Days prior and shall cause the other Target Companies not to take any action, refrain from taking any action or permit any action to be taken, which is inconsistent with this Agreement or the Effective Date, a statement Plan of all intercompany payables that will Arrangement or which would reasonably be owing by Spinco or any of its subsidiaries expected to Target or any impede the consummation of the Material Subsidiaries immediately prior to the Effective TimeArrangement and other transactions contemplated hereunder;
(b) subject to obtaining confirmation that insurance coverage is maintained as contemplated in Section 7.5, use commercially reasonable efforts to cause to be delivered to Acquiror on the Effective Date resignations, effective on the Effective Date or at such other time and in the manner requested by Acquiror, of the directors and officers of Target or its subsidiaries designated in writing by Acquiror, with a nominee of Acquiror to be appointed to the Target Board immediately after each such resignation;
(c) use commercially reasonable efforts to assist Acquiror in obtaining the Key Regulatory Approvals and it shall use commercially reasonable efforts to obtain any other required approvals from Governmental Entities relating to Target or any of its subsidiaries which are typically applied for by a target company the Regulatory Approvals, and, in doing so, keep Acquiror Acquisition Sub reasonably informed as to the status of the proceedings related to obtaining such approvalsRegulatory Approvals, including providing Acquiror Acquisition Sub with copies of all related applications and notifications, in draft form (except where such material is confidential in which case it will be provided (subject to applicable Laws) to Acquiror’s outside counsel on an “external counsel” basis)form, in order for Acquiror Acquisition Sub to provide its comments thereon;
(c) it shall cause all outstanding options to acquire any equity interest in a Target Subsidiary to be cancelled and terminated (without any consideration other than, if applicable, the issuance of Target Options) and it shall cause all Target Options and Target Warrants to be exercised effective immediately prior to the Effective Time (except that it shall cause all such Target Options and Target Warrants which shall are out of the money to be given due cancelled and reasonable considerationterminated prior to the Effective Time);
(d) it shall use commercially reasonable efforts to obtain as soon as practicable following execution satisfy (or cause the satisfaction of) the conditions set forth in Article 8 to the extent the same are within its control, and take, or cause to be taken, all other action and do, or cause to be done, all other things necessary, proper or advisable under all Applicable Law to support the transactions contemplated hereunder and under the Plan of this Agreement all third party consents, approvals and notices required under any of the Material ContractsArrangement, including using commercially reasonable efforts to:
(i) obtain all Key Third Party Contractual Consents;, and, as applicable, obtain or co-operate with Acquisition Sub in its efforts to obtain the Regulatory Approvals; and
(ii) oppose, lift or rescind any injunction or restraining order or other order or action seeking to enjoin the Arrangement, or otherwise adversely affecting the ability of Acquisition Sub, Parent and Target to complete the transactions contemplated hereunder; provided that nothing in this Section 5.6(d) shall derogate from Target’s rights under Article 9.
(e) at the request of Acquiror, take all it shall use commercially reasonable steps efforts to ensure thatconduct its affairs, on or prior and to cause the Effective Dateother Target Companies to conduct their affairs, the Target Exploration Properties and the Spinco Assets have been duly transferred to Spinco and Spinco has assumed so that all of the Spinco Liabilities representations and warranties made by Target contained herein shall be true and correct in a manner satisfactory all material respects on and as of the Effective Date as if made at such date (except to the Acquirorextent a representation or warranty speaks as of a specific date, acting reasonably; provided that taking any in which case such step does not itself result in, representation or warranty shall continue to be true and would not reasonably be expected to result in, any Taxes being imposed on, or any adverse Tax on or being suffered by, the Target Optionholders or the Target Shareholderscorrect as of such specified date);
(f) defend all lawsuits it shall not, and shall cause the other Target Companies not to, in any manner, directly or indirectly, through any officer, director, employee, representative (including for greater certainty any financial or other legaladvisors) or agent or otherwise, regulatory make, solicit, assist, initiate, encourage or otherwise facilitate any inquiries, proposals or offers from any Person regarding an Acquisition Proposal, engage in any discussions or negotiations regarding any Acquisition Proposal, or otherwise co-operate in any way with, or assist or participate in, knowingly facilitate or encourage any effort or attempt by any other proceedings against Target challenging Person to do or affecting this Agreement or the consummation seek to do any of the transactions contemplated herebyforegoing;
(g) it shall, immediately following the execution of this Agreement, (i) cease any existing solicitations, discussions or negotiations it is engaged in with any Person, other than Parent or Acquisition Sub, with respect to or which could reasonably be expected to lead to any Acquisition Proposal, and (ii) discontinue access to any confidential information or non-public information in respect of Target Companies (and not establish or allow access to any of such confidential or non-public information, or any data room, virtual or otherwise) to any other Person to whom confidential or non-public information has been provided in connection with such other Person’s review and consideration of a potential Acquisition Proposal and shall as soon as possible (unless otherwise agreed among the Parties) request, to the extent that it is entitled to do so, (and exercise all rights it has to require) the return or destruction of all confidential or non-public information regarding the Target Companies previously provided to any such Person and will request (and exercise all rights it has to require) the destruction of all material including or incorporating or otherwise reflecting any confidential or non-public information regarding the Target Companies in the possession of such Person;
(h) it shall, and shall cause the other Target Companies to: (i) not terminate, waive, amend or modify any standstill provision of any existing confidentiality agreement or standstill agreement to which it or any of the Target Subsidiaries is a party; and (ii) enforce all standstill, non-disclosure, non-disturbance, non-solicitation and similar covenants that it or any of the Target Subsidiaries have entered into prior to the date hereof;
(i) it shall promptly upon receipt, notify Acquisition Sub and Parent of: (A) any proposal, inquiry, offer (or any amendment thereto) or request that Target or any of the Target Companies receives that relates to, or constitutes an Acquisition Proposal; or (B) any request that Target receives for discussions or negotiations relating to an Acquisition Proposal or any request for non-public information relating to any Target Company by any Person that informs Target that it is considering making, or has made, an Acquisition Proposal. Such notice to Acquisition Sub and Parent shall be made in writing and shall include a description of the terms and conditions of any such proposal, inquiry, offer (including any amendment thereto) or request and shall, include copies of any such proposal, inquiry, offer or request or any amendment to any of the foregoing; and
(gj) allow Target shall, and shall cause the Target Subsidiaries and their respective officers, directors, employees, independent auditors, accounting advisers and agents to, afford to Acquisition Sub and Parent and to the officers, employees, agents and representatives of Acquiror Acquisition Sub and Parent such access as Acquisition Sub and Parent may reasonably require at all reasonable times upon reasonable advance notice, including for the purpose of facilitating integration business planning, to its officers, employees, agents, properties, Books and Records and contracts, and shall furnish Acquisition Sub and Parent with all data and information as Acquisition Sub and Parent may reasonably request. Parent and Target acknowledge and agree that information furnished pursuant to this Section 5.6(j) shall be subject to the terms and conditions of the Non-Disclosure Agreement. Notwithstanding the foregoing, until ten (including legal 10) days following the date hereof, the Parties will explore in good faith other transaction structures (such as an asset purchase and financial advisorssale) to attend effectuate Acquisition Sub’s acquisition of the Target MeetingBusiness. No Party is under any obligation with respect to any such other structure unless and until all Parties have executed, in their sole discretion, an amendment to this Agreement with respect thereto.
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Covenants of Target Relating to the Arrangement. Target shall and shall cause its subsidiaries to perform all obligations required or desirable to be performed by Target or any of its subsidiaries under this Agreement, co-operate with Acquiror in connection therewith, and do or cause to be done all such further acts and things as may be necessary or desirable in order to consummate and make effective, as soon as reasonably practicable, the transactions contemplated in this Agreement, including the execution and delivery of such documents as the other Party hereto may reasonably require. Without limiting the generality of the foregoing, Target shall and, where applicable, shall cause its subsidiaries to:
(a) provide to Acquiror, Acquiror at least two Business Days prior to the Effective DateDate (i) a reasonable estimate of the cash that will be held by Spinco and its subsidiaries immediately before the Effective Time that is not held in trust for, or for the benefit of, any joint venture partner or similar Person and (ii) a statement of all intercompany payables that will be owing by Spinco or any of its subsidiaries to Target or any of the Material Subsidiaries immediately prior to the Effective Time;
(b) subject to obtaining confirmation that insurance coverage is maintained as contemplated in Section 7.57.5 and subject to Section 5.5(e), it shall use commercially reasonable efforts to cause to be delivered to Acquiror on the Effective Date resignations, effective on the Effective Date or at such other time and in the manner requested by Acquiror, of the directors and officers of Target or its subsidiaries designated in writing by Acquiror, with a nominee nominees of Acquiror to be appointed to the Target Board immediately after each such resignation;
(c) use commercially reasonable efforts to assist Acquiror in obtaining the Key Regulatory Approvals apply for and use commercially reasonable efforts to obtain any other all required approvals from Governmental Entities Entities, including the Key Regulatory Approvals, relating to Target or any of its subsidiaries which are typically applied for by a target company and, in doing so, keep Acquiror informed as to the status of the proceedings related to obtaining such approvals, including providing Acquiror with copies of all related applications and notifications, in draft form (except where such material is confidential in which case it will be provided (subject to applicable Laws) to Acquiror’s 's outside counsel on an “"external counsel” " basis), in order for Acquiror to provide its comments thereon, which shall be given due and reasonable consideration;
(d) use commercially reasonable efforts to obtain as soon as practicable following execution of this Agreement all third party consents, approvals and notices required under any of the Material Contracts, including all Key Third Party Consents;
(e) at the request of Acquiror, take all commercially reasonable steps to ensure that, on or prior to the Effective Date, the Target Exploration Properties and the Spinco Assets have been duly transferred to Spinco and Spinco has assumed all of the Spinco Liabilities in a manner satisfactory to the Acquiror, acting reasonably; provided that taking any such step does not itself result in, and would not reasonably be expected to result in, any Taxes being imposed on, or any adverse Tax on or being suffered by, the Target Shareholders, the Target Optionholders or the Target ShareholdersWarrantholders;
(f) defend all lawsuits or other legal, regulatory or other proceedings against Target challenging or affecting this Agreement or the consummation of the transactions contemplated hereby; and
(g) allow representatives of Acquiror (including legal and financial advisors) to attend the Target Meeting.
Appears in 1 contract
Covenants of Target Relating to the Arrangement. Target shall and shall cause its subsidiaries to perform all obligations required or desirable to be performed by Target or any of its subsidiaries under this Agreement, co-operate with Acquiror in connection therewith, and do or cause to be done all such further acts and things as may be necessary or desirable in order to consummate and make effective, as soon as reasonably practicable, the transactions contemplated in this Agreement, including the execution and delivery of such documents as the other Party hereto may reasonably require. Without limiting the generality of the foregoing, Target shall and, where applicable, shall cause its subsidiaries to:
(a) provide to Acquiror, Acquiror at least two Business Days prior to the Effective DateDate (i) a reasonable estimate of the cash that will be held by Spinco and its subsidiaries immediately before the Effective Time that is not held in trust for, or for the benefit of, any joint venture partner or similar Person and (ii) a statement of all intercompany payables that will be owing by Spinco or any of its subsidiaries to Target or any of the Material Subsidiaries immediately prior to the Effective Time;
(b) subject to obtaining confirmation that insurance coverage is maintained as contemplated in Section 7.57.5 and subject to Section 5.5(e), it shall use commercially reasonable efforts to cause to be delivered to Acquiror on the Effective Date resignations, effective on the Effective Date or at such other time and in the manner requested by Acquiror, of the directors and officers of Target or its subsidiaries designated in writing by Acquiror, with a nominee nominees of Acquiror to be appointed to the Target Board immediately after each such resignation;
(c) use commercially reasonable efforts to assist Acquiror in obtaining the Key Regulatory Approvals apply for and use commercially reasonable efforts to obtain any other all required approvals from Governmental Entities Entities, including the Key Regulatory Approvals, relating to Target or any of its subsidiaries which are typically applied for by a target company and, in doing so, keep Acquiror informed as to the status of the proceedings related to obtaining such approvals, including providing Acquiror with copies of all related applications and notifications, in draft form (except where such material is confidential in which case it will be provided (subject to applicable Laws) to Acquiror’s 's outside counsel on an “"external counsel” " basis), in order for Acquiror to provide its comments thereon, which shall be given due and reasonable consideration;
(d) use commercially reasonable efforts to obtain as soon as practicable following execution followingexecution of this Agreement all third party consents, approvals and notices required under any of the Material Contracts, including all Key Third Party Consents;
(e) at the request of Acquiror, take all commercially reasonable steps to ensure that, on or prior to the Effective Date, the Target Exploration Properties and the Spinco Assets have been duly transferred to Spinco and Spinco has assumed all of the Spinco Liabilities in a manner satisfactory to the Acquiror, acting reasonably; provided that taking any such step does not itself result in, and would not reasonably be expected to result in, any Taxes being imposed on, or any adverse Tax on or being suffered by, the Target Shareholders, the Target Optionholders or the Target ShareholdersWarrantholders;
(f) defend all lawsuits or other legal, regulatory or other proceedings against Target challenging or affecting this Agreement or the consummation of the transactions contemplated hereby; and
(g) allow representatives of Acquiror (including legal and financial advisors) to attend the Target Meeting.
Appears in 1 contract
Covenants of Target Relating to the Arrangement. Target shall and shall cause its subsidiaries to perform all obligations required or desirable to be performed by Target or any of its subsidiaries under this Agreement, co-operate with Acquiror in connection therewith, and do or cause to be done all such further other acts and things as may be necessary or desirable in order to consummate and make effective, as soon as reasonably practicable, effective the transactions contemplated in this AgreementAgreement and, including the execution and delivery of such documents as the other Party hereto may reasonably require. Without without limiting the generality of the foregoing, Target shall and, where applicable, shall cause its subsidiaries to:
(a) promptly, and in any event within five Business Days following the date of this Agreement, provide to Acquiror, at least two Business Days prior Acquiror (if such agreement remains in effect and if providing a copy of such agreement is not prohibited by the terms of such agreement) a copy of each confidentiality and/or standstill agreement which has been entered into by Target and any third party pursuant to the Effective Date, a statement which confidential information of all intercompany payables that will be owing by Spinco or any of its subsidiaries to Target or any of the Material Subsidiaries immediately prior to the Effective Timehas been provided;
(b) subject to obtaining confirmation that insurance coverage is maintained as contemplated in Section 7.57.6.1, and provided that the Effective Date has occurred, it shall use its commercially reasonable efforts to cause such members of the Target Board to be delivered to resign as Acquiror on may require, at the Effective Date resignations, effective on the Effective Date or at such other time and in the manner requested by AcquirorAxxxxxxx, as of the directors and officers of Target or its subsidiaries designated in writing by AcquirorEffective Date, with a nominee of Acquiror to be appointed to the Target Board immediately after each such resignation;
(c) use commercially reasonable efforts to assist Acquiror in obtaining the Key Regulatory Approvals apply for and use its commercially reasonable efforts to obtain any other required approvals from Governmental Entities all Key Regulatory Approvals relating to Target or any of its subsidiaries which are typically applied for by a target company and, in doing so, keep Acquiror reasonably informed as to the status of the proceedings related to obtaining such approvalsthe Key Regulatory Approvals, including providing Acquiror with copies of all related applications and notifications, in draft form (except where such material is confidential in which case it will be provided (subject to applicable Laws) to Acquiror’s outside counsel on an “external counsel” basis), in order for Acquiror to provide its comments thereon, which shall be given due and reasonable consideration;
(d) use its commercially reasonable efforts to obtain obtain, as soon as practicable following execution of this Agreement Agreement, all third party consents, approvals and notices required under any of the Target Material Contracts, including and all Key Third Party Consents;
(e) at the request of Acquiror, take all commercially reasonable steps to ensure that, on or prior to the Effective Date, the Target Exploration Properties and the Spinco Assets have been duly transferred to Spinco and Spinco has assumed all of the Spinco Liabilities in a manner satisfactory to the Acquiror, acting reasonably; provided that taking any such step does not itself result in, and would not reasonably be expected to result in, any Taxes being imposed on, or any adverse Tax on or being suffered by, the Target Optionholders or the Target Shareholders;
(f) defend all lawsuits or other legal, regulatory or other proceedings against Target challenging or affecting this Agreement or the consummation of the transactions contemplated hereby;
(f) until the earlier of the Effective Time and termination of this Agreement, Target shall, subject to applicable Law, make available and cause to be made available to Acquiror, and the agents and advisors thereto, information reasonably requested by Acquiror for the purposes of preparing, considering and implementing integration and strategic plans for the combined businesses of Acquiror and Target following the Effective Date and confirming the representations and warranties of Target set out in this Agreement; and
(g) allow representatives of Acquiror (including legal and financial advisors) to attend the Target MeetingMeeting and allow officers of Acquiror to speak to any motion relating to the Arrangement Resolution, provided that Target and its legal counsel be advised of the nature of any submission prior to the hearing.
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