Covenants of the Company Regarding the Conduct of Business. (a) The Company covenants and agrees that during the period from the date of this Agreement until the earlier of the Effective Date and the time that this Agreement is terminated in accordance with its terms, except (A) as expressly required or expressly permitted by this Agreement or the Plan of Arrangement (including any Pre-Acquisition Reorganization), (B) as required by applicable Laws or Governmental Entity, (C) as expressly set out in the Company Disclosure Letter (including the Company Budget), (D) as a result of or in connection with any COVID-19 Measures (provided that the Company shall consult with the Purchaser and consider in good faith any suggestions of the Purchaser prior to undertaking any COVID-19 Measures), or (E) with the prior written consent of the Purchaser, such consent not to be unreasonably withheld, delayed or conditioned, the Company shall, and shall cause each of its Subsidiaries to, and shall exercise its rights (if any) with respect to the Joint Ventures to cause the Joint Ventures to: (i) conduct its and their respective businesses in the Ordinary Course; and (ii) use commercially reasonable efforts to preserve intact its and their present business organization, goodwill, business relationships and assets and to keep available the services of its and their officers and employees as a group. (b) Without limiting the generality of Section 5.1(a), the Company covenants and agrees that during the period from the date of this Agreement until the earlier of the Effective Date and the time that this Agreement is terminated in accordance with its terms, except (A) as expressly required or expressly permitted by this Agreement or the Plan of Arrangement (including any Pre-Acquisition Reorganization), (B) as required by applicable Laws or Governmental Entity, (C) as expressly set out in the Company Disclosure Letter (including the Company Budget), or (D) with the prior written consent of the Purchaser, such consent not to be unreasonably withheld, delayed or conditioned, the Company shall not, and shall cause each of its Subsidiaries not to, and shall exercise its rights (if any) with respect to the Joint Ventures to cause the Joint Ventures not to direct or indirectly: (i) amend its notice of articles, articles or other constating documents; (ii) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Shares or other equity or voting interests or any options, share appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Shares or other equity or voting interests or other securities or, other than issuances by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company or in respect of Permitted Liens, any shares of its Subsidiaries (including, for greater certainty, Company Options or any other equity based awards), other than pursuant to (A) the exercise or vesting of Company Options or Company RSUs in accordance with their terms, (B) the grants of Company Options and Company RSUs set out in Section 5.1(b)(ii) of the Company Disclosure Letter or (C) contributions of capital made by the Company or one of its Subsidiaries to a Joint Venture in connection with the funding of capital expenditures expressly permitted by this Section 5.1 or required to be made by this Agreement; (iii) split, combine or reclassify any outstanding Company Shares or the securities of any of its Subsidiaries; (iv) declare, set aside or pay any dividend or make any other distribution (whether in cash, securities, or property or any combination thereof), other than the Permitted Dividends and dividends or distributions from one wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company or by a Joint Venture in the Ordinary Course; (v) redeem, purchase or otherwise acquire or offer to purchase or otherwise acquire Company Shares or other securities of the Company or any securities of its Subsidiaries, other than the acquisition of securities of any wholly-owned Subsidiary of the Company by the Company or by any other Subsidiary of the Company; (vi) adopt or propose a plan of liquidation or resolutions providing for the liquidation or dissolution of the Company or any of its Subsidiaries; (vii) reorganize, amalgamate or merge the Company or its Subsidiaries with any other Person; (viii) sell, pledge, lease, dispose of, mortgage, licence, encumber or otherwise transfer or agree to sell, pledge, lease, dispose of, mortgage, licence, encumber or otherwise transfer any tangible assets of the Company or any of its Subsidiaries or any interest in any tangible assets of the Company or any of its Subsidiaries, except (A) sales of inventory or obsolete assets in the Ordinary Course, (B) other sales of tangible assets in the Ordinary Course subject to a maximum (in terms of value of such assets or interests therein) of $5,000,000 (whether individually or in the aggregate) and (C) Permitted Liens; (A) acquire (by merger, consolidation, acquisition of shares or assets or otherwise) or agree to acquire, directly or indirectly, in one transaction or in a series of related transactions, any Person, (B) make any investment or agree to make any investment, directly or indirectly, in one transaction or in a series of related transactions, either by purchase of shares or securities, contributions of capital or otherwise (other than to wholly-owned Subsidiaries or in connection with capital expenditures expressly permitted by this Section 5.1), or (C) purchase any property or assets of any other Person, other than for greater certainty pursuant to or in connection with Ordinary Course procurement activities or the acquisition of raw materials or inventory in the Ordinary Course; (x) incur any capital expenditures or enter into or modify any agreement obligating the Company or its Subsidiaries to provide for future capital expenditures other than (A) budgeted capital expenditures that are included in the Company Budget, or (B) any other capital expenditures not to exceed $5,000,000 in the aggregate; (xi) make any changes in financial accounting methods, principles, policies or practices, except as required, in each case, by IFRS; (xii) reduce the stated capital of the Company Shares or the shares or any of the Company’s Subsidiaries; (xiii) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or issue any debt securities, or guarantee, endorse or otherwise become responsible for, the obligations of any arm’s length Person or make any loans or advances, in any such individual case, in an amount in excess of $5,000,000, other than indebtedness owing by one wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company or by the Company to another wholly-owned Subsidiary of the Company and other than in connection with advances under the Company’s or any Subsidiary’s credit facilities existing on the date hereof in the Ordinary Course; (xiv) (A) before due and owing, pay, discharge or satisfy, or (B) waive, release, assign, settle or compromise, any material claims or material liabilities (including any litigation, proceedings or investigation by any Governmental Entity); (xv) enter into any agreement that, if entered into prior to the date hereof, would have been a Company Material Contract, or modify, amend in any material respect, transfer or terminate any Company Material Contract, or waive, release, or assign any material rights or claims thereto or thereunder; (xvi) enter into or terminate any material interest rate, currency, equity or commodity swaps, xxxxxx, derivatives, forward sales contracts or other financial instruments or like transaction, other than in the Ordinary Course; (xvii) except as required by the terms of the Company Benefit Plans or any written employment Contracts in effect on the date of this Agreement and disclosed in the Data Room, (A) grant, accelerate, or increase any severance, change of control or termination pay to (or amend any existing arrangement relating to the foregoing with) any director, officer, employee or individual consultant of the Company or any of its Subsidiaries; (B) grant, accelerate, or increase any payment, award (equity or otherwise) or other benefits payable to, or for the benefit of, any director, officer, employee or individual consultant of the Company or any of its Subsidiaries, except an annual cash bonus in the Ordinary Course or as may be required to comply with Section 5.3 of this Agreement; (C) increase the coverage, contributions, funding requirements or benefits available under any Company Benefit Plan, other than in the Ordinary Course, or create any new plan which would be considered to be a Company Benefit Plan once created; (D) increase compensation (in any form), bonus levels or other benefits payable to any director, officer, employee or consultant of the Company or any of its Subsidiaries or grant any general increase in the rate of wages, salaries, bonuses or other remuneration, except in the Ordinary Course; (E) make any material determination under any Company Benefit Plan that is not in the Ordinary Course, other than determinations in furtherance of acceleration, vesting or similar determinations in connection with the transactions described herein; or (F) take or propose any action to effect any of the foregoing; (xviii) enter into, amend or terminate any employment, severance, consulting, termination or other similar agreement with any of its officers, directors, employees, agents or consultants, or any Company Benefit Plan, in each case, other than (A) severance agreements entered into in connection with terminating employees in the Ordinary Course, (B) offer letters entered into in the Ordinary Course, that do not provide for severance (except as required by applicable Law) or change in control benefits, (C) consulting agreements entered into in the Ordinary Course, (D) amendments required by Law or required to maintain the tax-qualified or registered status of any Company Benefit Plan under Section 401(a) of the Code or other applicable Law or
Appears in 1 contract
Samples: Arrangement Agreement
Covenants of the Company Regarding the Conduct of Business. (a) The Company covenants and agrees that that, during the period from the date of this Agreement until the earlier of the Effective Date Time and the time that termination of this Agreement is terminated in accordance with its terms, except (Ai) as required by Law or any Governmental Entity, (ii) with the prior written consent of Hudbay, or (iii) as otherwise expressly required contemplated or expressly permitted by this Agreement or the Plan of Arrangement Arrangement:
(including any Pre-Acquisition Reorganization), (Ba) as required by applicable Laws or Governmental Entity, (C) as expressly set out in the Company Disclosure Letter (including the Company Budget), (D) as a result of or in connection with any COVID-19 Measures (provided that the Company shall consult with the Purchaser and consider in good faith any suggestions of the Purchaser prior to undertaking any COVID-19 Measures), or (E) with the prior written consent of the Purchaser, such consent not to be unreasonably withheld, delayed or conditioned, the Company shall, and shall cause each of its Subsidiaries to, and shall exercise its rights (if any) with respect to the Joint Ventures to cause the Joint Ventures to:
(i) conduct its business in, not take any action except in, and maintain their respective businesses in facilities in, the Ordinary Course; and
(ii) ordinary course and to use commercially reasonable efforts to maintain and preserve intact its and their present business organization, assets, properties (including the Company Mineral Interests) and goodwill, business relationships and assets and to keep available the services of its and their officers and employees as a group.group and to maintain satisfactory relationships consistent with past practice with joint venture partners, suppliers, distributors, employees, Governmental Entities and others having business relationships with them;
(b) Without without limiting the generality of Section 5.1(a), the Company covenants and agrees that during the period from the date of this Agreement until the earlier of the Effective Date and the time that this Agreement is terminated in accordance with its terms, except (A) as expressly required or expressly permitted by this Agreement or the Plan of Arrangement (including any Pre-Acquisition Reorganization), (B) as required by applicable Laws or Governmental Entity, (C) as expressly set out in the Company Disclosure Letter (including the Company Budget), or (D) with the prior written consent of the Purchaser, such consent not to be unreasonably withheld, delayed or conditioned, the Company shall not, directly or indirectly, and shall cause each of its Subsidiaries not to, and shall exercise its rights (if any) with respect to the Joint Ventures to cause the Joint Ventures not to direct or indirectly:
(i) amend its notice of articles, articles or other constating documents;
(ii) issue, sell, grant, award, pledge, dispose of or otherwise encumber permit a Lien to be created on or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber permit a Lien to be created on any Company Shares Shares, or other equity or voting interests or any options, share stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Shares or other equity or voting interests or other securities or, other than issuances by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company or in respect of Permitted Liens, any shares of its Subsidiaries (including, for greater certainty, Company Options or any other equity based awardsand Company Warrants), other than pursuant to (A) the exercise or vesting of Company Options or Company RSUs Warrants in accordance with their terms, (B) the grants terms of such Company Options and Company RSUs set out Warrants in Section 5.1(b)(iieffect on the date hereof;
(ii) amend or propose to amend the articles or other constating documents or the terms of any securities of the Company Disclosure Letter or (C) contributions of capital made by the Company or one any of its Subsidiaries to a Joint Venture in connection with the funding of capital expenditures expressly permitted by this Section 5.1 or required to be made by this AgreementSubsidiaries;
(iii) declare, set aside or pay any dividend or other distribution to Company Shareholders (whether in cash, securities or property or any combination thereof) in respect of any Company Shares;
(iv) split, combine or reclassify any outstanding Company Shares or the securities of any of its Subsidiaries;
(iv) declare, set aside or pay any dividend or make any other distribution (whether in cash, securities, or property or any combination thereof), other than the Permitted Dividends and dividends or distributions from one wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company or by a Joint Venture in the Ordinary Course;
(v) redeem, purchase or otherwise acquire or offer to purchase or otherwise acquire any Company Shares or other securities of the Company or any shares or other securities of its Subsidiaries, other than the acquisition of securities of any wholly-owned Subsidiary of the Company by the Company or by any other Subsidiary of the Company;
(vi) adopt or propose a plan of liquidation or resolutions providing for the liquidation or dissolution of the Company or any of its Subsidiaries;
(viivi) except in connection with a Pre-Acquisition Reorganization, reorganize, amalgamate or merge the Company or any of its Subsidiaries with any other Person;
(vii) reduce the stated capital of the Company Shares or the shares of any of its Subsidiaries;
(viii) sell, pledge, lease, dispose of, mortgage, licence, encumber or otherwise transfer permit a Lien to be created on or agree to sell, pledge, lease, dispose of, mortgage, licence, encumber permit a Lien to be created on or otherwise transfer any tangible assets of the Company or any of its Subsidiaries or any interest in any tangible assets of the Company or any of its Subsidiaries, except (A) sales of inventory or obsolete assets in the Ordinary Course, (B) other sales of tangible assets in the Ordinary Course subject to a maximum (in terms of value of such assets or interests therein) of $5,000,000 (whether individually or in the aggregate) and (C) Permitted LiensCompany;
(Aix) acquire (by merger, consolidation, acquisition of shares stock or assets or otherwise) or agree to acquire, directly or indirectly, in one transaction or in a series of related transactions, any Person, (B) or make any investment or agree to make any investmentinvestment (by purchase of shares or securities, contributions of capital (other than to wholly-owned Subsidiaries), property transfer, purchase of any property or assets or otherwise), directly or indirectly, in one transaction or in a series of related transactions, either by purchase of shares or securities, contributions of capital or otherwise (other than to wholly-owned Subsidiaries or in connection with capital expenditures expressly permitted by this Section 5.1), or (C) purchase any property or assets of any other Person, other than for greater certainty pursuant to or in connection with Ordinary Course procurement activities or the acquisition of raw materials or inventory in the Ordinary Course;
(x) incur any capital expenditures or enter into or modify any agreement obligating the Company or its Subsidiaries to provide for future capital expenditures other than (A) budgeted capital expenditures that are included in the Company Budget, or (B) any other capital expenditures not to exceed $5,000,000 in the aggregate;
(xi) make any changes in financial accounting methods, principles, policies or practices, except as required, in each case, by IFRS;
(xii) reduce the stated capital of the Company Shares or the shares or any of the Company’s Subsidiaries;
(xiii) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities, securities or guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any arm’s length other Person or make any loans or advances;
(xi) adopt a plan of liquidation or resolutions providing for the winding-up, liquidation or dissolution of the Company or any of its Subsidiaries;
(xii) pay, discharge, settle, satisfy, compromise, waive, assign or release any material claims, liabilities or obligations prior to the same becoming due;
(xiii) authorize, recommend or propose any release or relinquishment of any material contractual right;
(xiv) waive, release, grant, transfer, exercise, modify or amend in any such individual casematerial respect (A) any existing contractual rights in respect of any Company Mineral Interests, (B) any material Authorization, lease, concession, contract or other document, or (C) any other material legal rights or claims;
(xv) waive, release, grant or transfer any rights of value or modify or change in an amount any material respect any existing licence, lease, contract or other document;
(xvi) take any action or fail to take any action which action or failure to act would result in excess the material loss, expiration or surrender of, or the loss of $5,000,000any material benefit under, other than indebtedness owing by one wholly-owned Subsidiary or reasonably be expected to cause any Governmental Entities to institute proceedings for the suspension, revocation or limitation of rights under, any material Authorizations necessary to conduct its businesses as now conducted or planned to be conducted; or fail to prosecute with commercially reasonable due diligence any pending applications to any Governmental Entities;
(xvii) take any action or fail to take any action that is intended to, or would reasonably be expected to, individually or in the aggregate, prevent, materially delay or materially impede the ability of the Company to consummate the Company Arrangement or another wholly-owned Subsidiary of the Company or other transactions contemplated by the Company to another wholly-owned Subsidiary of the Company and this Agreement, other than in connection with advances under the Company’s or any Subsidiary’s credit facilities existing on the date hereof in the Ordinary Coursea Pre-Acquisition Reorganization;
(xivxviii) other than as is necessary to comply with applicable Laws or the current terms of any Contracts or Company Benefit Plans that are disclosed in the Company Disclosure Letter: (A) before due and owing, pay, discharge or satisfygrant to any Company Employee an increase in compensation in any form, or grant any general salary increase; (B) waivemake any loan to any Company Employee; (C) take any action with respect to the grant of any severance, releaseretention, assignchange of control, settle bonus or compromisetermination pay to, or enter into any employment agreement, consulting agreement, independent contractor agreement, deferred compensation or other similar agreement (or amend any such existing agreement) with any Company Employee; (D) increase any benefits payable under any existing severance or termination pay policies or employment, consulting or independent contractor agreements, or adopt or materially amend or make any contribution to any Company Benefit Plan or other bonus, profit sharing, option, pension, retirement, deferred compensation, insurance, incentive compensation, compensation or other similar plan, agreement, trust, fund or arrangement for the benefit of Company Employees or former Company Employees; (E) increase bonus levels or other benefits payable to any Company Employee; (F) provide for accelerated vesting, removal of restrictions or an exercise of any stock-based or stock-related awards (including Company Options); (G) establish, adopt or amend (except as required by applicable Law) any collective bargaining agreement or similar agreement; or (H) hire or engage, or amend the terms of employment or engagement of, any material claims or material liabilities (including any litigation, proceedings or investigation by any Governmental Entity)Company Employee;
(xv) enter into any agreement that, if entered into prior to the date hereof, would have been a Company Material Contract, or modify, amend in any material respect, transfer or terminate any Company Material Contract, or waive, release, or assign any material rights or claims thereto or thereunder;
(xvixix) enter into or terminate any material interest rate, currency, equity or commodity swaps, xxxxxx, derivatives, forward sales contracts or other financial instruments or like transaction, other than in the Ordinary Course;
(xviixx) materially change the business carried on by the Company and its Subsidiaries, as a whole;
(xxi) amend its accounting policies or adopt new accounting policies, except as required by the terms concurrent changes in IFRS;
(xxii) enter into any Contract or series of related Contracts having a term in excess of 12 months and that would not be terminable by the Company Benefit Plans or any written employment Contracts in effect on its Subsidiaries upon notice of 90 days or less from the date of this Agreement and disclosed in the Data Room, (A) grant, acceleraterelevant Contract, or increase any severance, change of control or termination pay to (or amend any existing arrangement relating to the foregoing with) any director, officer, employee or individual consultant of the Company or any of its Subsidiaries; (B) grant, accelerate, or increase any payment, award (equity or otherwise) or other benefits payable to, or for the benefit of, any director, officer, employee or individual consultant of the Company or any of its Subsidiaries, except an annual cash bonus in the Ordinary Course or as may be required to comply with Section 5.3 of this Agreement; (C) increase the coverage, contributions, funding requirements or benefits available under any Company Benefit Plan, other than in the Ordinary Course, or create any new plan which that would be considered to be a Company Benefit Plan once created; (D) increase compensation (in any form), bonus levels or other benefits payable to any director, officer, employee or consultant of impose financial obligations on the Company or any of its Subsidiaries in excess of $50,000 annually or $150,000 in the aggregate over the term of the Contract;
(xxiii) alter, amend, or otherwise modify or supplement, or waive any provision or condition of, or grant a consent under, any general increase in the rate of wagesMaterial Contract;
(xxiv) [Redacted - Confidential Information];
(xxv) enter into or renew any agreement, salariescontract, bonuses lease, licence or other remunerationbinding obligation of the Company or its Subsidiaries (A) containing (1) any limitation or restriction on the ability of the Company or its Subsidiaries or, except following completion of the transactions contemplated hereby, the ability of Hudbay or its Subsidiaries, to engage in any type of activity or business, (2) any limitation or restriction on the Ordinary Course; manner in which, or the localities in which, all or any portion of the business of the Company or its Subsidiaries or, following consummation of the transactions contemplated hereby, all or any portion of the business of Hudbay or its Subsidiaries, is or would be conducted, or (E3) make any material determination under limit or restriction on the ability of the Company or its Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Hudbay or its Subsidiaries, to solicit customers or employees, or (B) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement;
(xxvi) allow any Company Benefit Plan that is Mineral Interest to expire or lapse;
(xxvii) [Redacted - Confidential Information]; or
(xxviii) incur any capital expenditures or enter into any agreement obligating the Company or its Subsidiaries to provide for future capital expenditures.
(c) the Company shall use its commercially reasonable efforts to cause its and its Subsidiaries' current insurance (or re-insurance) policies not in the Ordinary Course, other than determinations in furtherance of acceleration, vesting to be cancelled or similar determinations in connection with the transactions described herein; terminated or (F) take or propose any action to effect any of the foregoingcoverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(xviiid) enter intothe Company shall and shall cause each of its Subsidiaries to maintain and preserve all of its and its Subsidiaries' rights under each of its Company Mineral Interest under each of its and its Subsidiaries' Authorizations;
(e) the Company and each of its Subsidiaries shall:
(i) duly and timely file all Tax Returns required to be filed by it on or after the date hereof and all such Tax Returns will be true, complete and correct in all respects;
(ii) timely withhold, collect, remit and pay all Taxes which are required to be withheld, collected, remitted or paid by it to the extent due and payable;
(iii) not make, change or rescind any material election, information, return or designation relating to Taxes;
(iv) not amend or terminate change any employmentof its methods for reporting income deductions or accounting for Tax purposes;
(v) not make a request for a Tax ruling, severancevoluntarily disclose any potential or actual Tax issue to any taxing authority, consulting, termination or other similar enter into or amend any agreement with any taxing authorities, or consent to any extension or waiver of any limitation period with respect to Taxes;
(vi) not settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes;
(vii) not knowingly make or modify any agreement in respect of, or agree to take any action that could affect the interpretation of, any Tax matters with any Governmental Entity;
(viii) not enter into any Tax sharing, Tax allocation or Tax indemnification agreement;
(ix) not amend any Tax Return or change any of its officersmethods of reporting income, directors, employees, agents deductions or consultants, or any Company Benefit Plan, in each case, other than (A) severance agreements entered into in connection with terminating employees accounting for income Tax purposes from those employed in the Ordinary Coursepreparation of its income Tax Return for the tax year ended December 31, (B) offer letters entered into in the Ordinary Course2021, that do not provide for severance (except as may be required by applicable LawLaws;
(x) respond completely and comprehensively to any audit, investigation, assessment or change request for information from any Governmental Entity in control benefitsrespect of Taxes promptly (and in any event, within the time frame set by such Governmental Entity for any such response, having regard to any extensions of time); and
(Cxi) consulting agreements entered into in keep Hudbay reasonably informed of any material events, discussions, correspondence or other action with respect to any Tax audit, investigation or assessment or request for information;
(f) the Ordinary CourseCompany shall not initiate any material discussions, negotiations or filings with any Governmental Entity regarding any matter (D) amendments required including with respect to the Arrangement or the transactions contemplated by Law this Agreement or required to maintain regarding the tax-qualified or registered status of the Company Mineral Interests) without the prior consent of Hudbay, such consent not to be unreasonably withheld, and shall provide Hudbay with prompt notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication; and
(g) the Company Benefit Plan under Section 401(a) shall not authorize, agree or otherwise commit to do any of the Code or other applicable Law ormatters prohibited by this Section 5.1.
Appears in 1 contract
Covenants of the Company Regarding the Conduct of Business. (a) The Company covenants and agrees that that, during the period from the date of this Agreement until the earlier of the Effective Date Time and the time that termination of this Agreement is terminated in accordance with its terms, except (Ai) as required by Law or any Governmental Entity; (ii) with the prior written consent of the Parent (not to be unreasonably withheld, conditioned or delayed); (iii) as set out in the Company Disclosure Letter; or (iv) as otherwise expressly required contemplated or expressly permitted by this Agreement or the Plan of Arrangement Arrangement:
(including any Pre-Acquisition Reorganization), (Ba) as required by applicable Laws or Governmental Entity, (C) as expressly set out in the Company Disclosure Letter (including the Company Budget), (D) as a result of or in connection with any COVID-19 Measures (provided that the Company shall consult with the Purchaser and consider in good faith any suggestions of the Purchaser prior to undertaking any COVID-19 Measures), or (E) with the prior written consent of the Purchaser, such consent not to be unreasonably withheld, delayed or conditioned, the Company shall, and shall cause each of its Subsidiaries to, and shall exercise its rights (if any) with respect to the Joint Ventures to cause the Joint Ventures to:
(i) conduct its and their respective businesses in in, not take any action except in, and maintain their respective facilities in, the Ordinary Course; and
(ii) ordinary course and to use commercially reasonable efforts to maintain and preserve intact in all material respects its and their present business organization, operations, assets, properties (including the Company Mineral Interests) and goodwill, business relationships and assets and to keep available the services of its and their officers and employees as a group.group and to maintain satisfactory relationships consistent with past practice with joint venture partners, suppliers, distributors, employees and Governmental Entities having business relationships with them;
(b) Without without limiting the generality of Section 5.1(a), the Company covenants and agrees that during the period from the date of this Agreement until the earlier of the Effective Date and the time that this Agreement is terminated in accordance with its terms, except (A) as expressly required or expressly permitted by this Agreement or the Plan of Arrangement (including any Pre-Acquisition Reorganization), (B) as required by applicable Laws or Governmental Entity, (C) as expressly set out in the Company Disclosure Letter (including the Company Budget), or (D) with the prior written consent of the Purchaser, such consent not to be unreasonably withheld, delayed or conditioned, the Company shall not, and shall cause each not permit any of its Subsidiaries not to, and shall exercise its rights (if any) with respect to the Joint Ventures to cause the Joint Ventures not to direct directly or indirectly:
(i) amend its notice other than as required by the terms of articlesany Company Equity Incentive Plan or written employment agreement, articles or other constating documents;
(ii) issue, sell, grant, award, pledge, dispose of of, or otherwise encumber permit a Lien (other than a Company Permitted Lien) to be created, or agree to issue, sell, grant, award, pledge, dispose of of, or otherwise encumber permit a Lien (other than a Company Permitted Lien) to be created, on any Company Shares Shares, or other equity or voting interests or any options, share stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Shares or other equity or voting interests or other securities or, other than issuances by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company or in respect of Permitted Liens, any shares of its Subsidiaries (including, for greater certainty, Company Options or any other equity based awardsIncentive Awards), other than pursuant to (A) the exercise or vesting settlement of any Company Options or Company RSUs Incentive Awards that are outstanding as of the date hereof in accordance with their terms;
(ii) amend or propose to amend the articles, (B) the grants of Company Options and Company RSUs set out in Section 5.1(b)(ii) by-laws or other constating documents of the Company Disclosure Letter and its Subsidiaries or (C) contributions the terms of capital made by any securities of the Company or one any of its Subsidiaries to a Joint Venture in connection with the funding of capital expenditures expressly permitted by this Section 5.1 or required to be made by this AgreementSubsidiaries;
(iii) declare, accrue, set aside or pay any dividend or make any other distribution to Company Shareholders (whether in cash, securities or property or any combination thereof) in respect of any Company Shares or the securities of any of its Subsidiaries; - 91 - (iv) split, combine or reclassify any outstanding Company Shares or the securities of any of its Subsidiaries;
(iv) declare, set aside or pay any dividend or make any other distribution (whether in cash, securities, or property or any combination thereof), other than the Permitted Dividends and dividends or distributions from one wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company or by a Joint Venture in the Ordinary Course;
(v) redeem, purchase or otherwise acquire or offer to purchase or otherwise acquire Company Shares or other securities of the Company or any securities of its Subsidiaries, other than the acquisition of securities of any wholly-owned Subsidiary of the Company by the Company or by any other Subsidiary of the Company;
(vi) adopt or propose a plan of liquidation or resolutions providing for the liquidation or dissolution of the Company or any of its Subsidiaries;
(vii) reorganize, amalgamate or merge the Company or its Subsidiaries with any other Person;
(viii) sell, pledge, lease, dispose of, mortgage, licence, encumber or otherwise transfer or agree to sell, pledge, lease, dispose of, mortgage, licence, encumber or otherwise transfer any tangible assets of the Company or any of its Subsidiaries or any interest in any tangible assets of the Company or any of its Subsidiaries, except (A) sales of inventory or obsolete assets in the Ordinary Course, (B) other sales of tangible assets in the Ordinary Course subject to a maximum (in terms of value of such assets or interests therein) of $5,000,000 (whether individually or in the aggregate) and (C) Permitted Liens;
(A) acquire (by merger, consolidation, acquisition of shares or assets or otherwise) or agree to acquire, directly or indirectly, in one transaction or in a series of related transactions, any Person, (B) make any investment or agree to make any investment, directly or indirectly, in one transaction or in a series of related transactions, either by purchase of shares or securities, contributions of capital or otherwise (other than to wholly-owned Subsidiaries or in connection with capital expenditures expressly permitted by this Section 5.1), or (C) purchase any property or assets of any other Person, other than for greater certainty pursuant to or in connection with Ordinary Course procurement activities or the acquisition of raw materials or inventory in the Ordinary Course;
(x) incur any capital expenditures or enter into or modify any agreement obligating the Company or its Subsidiaries to provide for future capital expenditures other than (A) budgeted capital expenditures that are included in the Company Budget, or (B) any other capital expenditures not to exceed $5,000,000 in the aggregate;
(xi) make any changes in financial accounting methods, principles, policies or practices, except as required, in each case, by IFRS;
(xii) reduce the stated capital of the Company Shares or the shares or any of the Company’s Subsidiaries;
(xiii) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or issue any debt securities, or guarantee, endorse or otherwise become responsible for, the obligations of any arm’s length Person or make any loans or advances, in any such individual case, in an amount in excess of $5,000,000, other than indebtedness owing by one wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company or by the Company to another wholly-owned Subsidiary of the Company and other than in connection with advances under the Company’s or any Subsidiary’s credit facilities existing on the date hereof in the Ordinary Course;
(xiv) (A) before due and owing, pay, discharge or satisfy, or (B) waive, release, assign, settle or compromise, any material claims or material liabilities (including any litigation, proceedings or investigation by any Governmental Entity);
(xv) enter into any agreement that, if entered into prior to the date hereof, would have been a Company Material Contract, or modify, amend in any material respect, transfer or terminate any Company Material Contract, or waive, release, or assign any material rights or claims thereto or thereunder;
(xvi) enter into or terminate any material interest rate, currency, equity or commodity swaps, xxxxxx, derivatives, forward sales contracts or other financial instruments or like transaction, other than in the Ordinary Course;
(xvii) except as required by the terms of the Company Benefit Plans or any written employment Contracts in effect on the date of this Agreement and disclosed in the Data Room, (A) grant, accelerate, or increase any severance, change of control or termination pay to (or amend any existing arrangement relating to the foregoing with) any director, officer, employee or individual consultant of the Company or any of its Subsidiaries; (B) grant, accelerate, or increase any payment, award (equity or otherwise) or other benefits payable to, or for the benefit of, any director, officer, employee or individual consultant of the Company or any of its Subsidiaries, except an annual cash bonus in the Ordinary Course or as may be required to comply with Section 5.3 of this Agreement; (C) increase the coverage, contributions, funding requirements or benefits available under any Company Benefit Plan, other than in the Ordinary Course, or create any new plan which would be considered to be a Company Benefit Plan once created; (D) increase compensation (in any form), bonus levels or other benefits payable to any director, officer, employee or consultant of the Company or any of its Subsidiaries or grant any general increase in the rate of wages, salaries, bonuses or other remuneration, except in the Ordinary Course; (E) make any material determination under any Company Benefit Plan that is not in the Ordinary Course, other than determinations in furtherance of acceleration, vesting or similar determinations in connection with the transactions described herein; or (F) take or propose any action to effect any of the foregoing;
(xviii) enter into, amend or terminate any employment, severance, consulting, termination or other similar agreement with any of its officers, directors, employees, agents or consultants, or any Company Benefit Plan, in each case, other than (A) severance agreements entered into in connection with terminating employees in the Ordinary Course, (B) offer letters entered into in the Ordinary Course, that do not provide for severance (except as required by applicable Law) or change in control benefits, (C) consulting agreements entered into in the Ordinary Course, (D) amendments required by Law or required to maintain the tax-qualified or registered status of any Company Benefit Plan under Section 401(a) of the Code or other applicable Law or
Appears in 1 contract
Covenants of the Company Regarding the Conduct of Business. (a) The Company covenants and agrees that that, during the period from the date of this Agreement until the earlier of the Effective Date Time and the time that termination of this Agreement is terminated in accordance with its terms, except (Ai) as required by Law or any Governmental Entity; (ii) with the prior written consent of the Parent (not to be unreasonably withheld, conditioned or delayed); (iii) as set out in the Company Disclosure Letter; or (iv) as otherwise expressly required contemplated or expressly permitted by this Agreement or the Plan of Arrangement Arrangement:
(including any Pre-Acquisition Reorganization), (Ba) as required by applicable Laws or Governmental Entity, (C) as expressly set out in the Company Disclosure Letter (including the Company Budget), (D) as a result of or in connection with any COVID-19 Measures (provided that the Company shall consult with the Purchaser and consider in good faith any suggestions of the Purchaser prior to undertaking any COVID-19 Measures), or (E) with the prior written consent of the Purchaser, such consent not to be unreasonably withheld, delayed or conditioned, the Company shall, and shall cause each of its Subsidiaries to, and shall exercise its rights (if any) with respect to the Joint Ventures to cause the Joint Ventures to:
(i) conduct its and their respective businesses in in, not take any action except in, and maintain their respective facilities in, the Ordinary Course; and
(ii) ordinary course and to use commercially reasonable efforts to maintain and preserve intact in all material respects its and their present business organization, operations, assets, properties (including the Company Mineral Interests) and goodwill, business relationships and assets and to keep available the services of its and their officers and employees as a group.group and to maintain satisfactory relationships consistent with past practice with joint venture partners, suppliers, distributors, employees and Governmental Entities having business relationships with them;
(b) Without without limiting the generality of Section 5.1(a), the Company covenants and agrees that during the period from the date of this Agreement until the earlier of the Effective Date and the time that this Agreement is terminated in accordance with its terms, except (A) as expressly required or expressly permitted by this Agreement or the Plan of Arrangement (including any Pre-Acquisition Reorganization), (B) as required by applicable Laws or Governmental Entity, (C) as expressly set out in the Company Disclosure Letter (including the Company Budget), or (D) with the prior written consent of the Purchaser, such consent not to be unreasonably withheld, delayed or conditioned, the Company shall not, and shall cause each not permit any of its Subsidiaries not to, and shall exercise its rights (if any) with respect to the Joint Ventures to cause the Joint Ventures not to direct directly or indirectly:
(i) amend its notice other than as required by the terms of articlesany Company Equity Incentive Plan or written employment agreement, articles or other constating documents;
(ii) issue, sell, grant, award, pledge, dispose of of, or otherwise encumber permit a Lien (other than a Company Permitted Lien) to be created, or agree to issue, sell, grant, award, pledge, dispose of of, or otherwise encumber permit a Lien (other than a Company Permitted Lien) to be created, on any Company Shares Shares, or other equity or voting interests or any options, share stock appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Shares or other equity or voting interests or other securities or, other than issuances by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company or in respect of Permitted Liens, any shares of its Subsidiaries (including, for greater certainty, Company Options or any other equity based awardsIncentive Awards), other than pursuant to (A) the exercise or vesting settlement of any Company Options or Company RSUs Incentive Awards that are outstanding as of the date hereof in accordance with their terms;
(ii) amend or propose to amend the articles, (B) the grants of Company Options and Company RSUs set out in Section 5.1(b)(ii) by-laws or other constating documents of the Company Disclosure Letter and its Subsidiaries or (C) contributions the terms of capital made by any securities of the Company or one any of its Subsidiaries to a Joint Venture in connection with the funding of capital expenditures expressly permitted by this Section 5.1 or required to be made by this AgreementSubsidiaries;
(iii) declare, accrue, set aside or pay any dividend or make any other distribution to Company Shareholders (whether in cash, securities or property or any combination thereof) in respect of any Company Shares or the securities of any of its Subsidiaries;
(iv) split, combine or reclassify any outstanding Company Shares or the securities of any of its Subsidiaries;
(iv) declare, set aside or pay any dividend or make any other distribution (whether in cash, securities, or property or any combination thereof), other than the Permitted Dividends and dividends or distributions from one wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company or by a Joint Venture in the Ordinary Course;
(v) redeem, purchase or otherwise acquire or offer to purchase or otherwise acquire any Company Shares or other securities of the Company or any shares or other securities of its Subsidiaries, other than pursuant to the acquisition of securities settlement of any wholly-owned Subsidiary Company Incentive Awards that are outstanding as of the Company by the Company or by any other Subsidiary of the Companydate hereof in accordance with their terms and except in connection with a Pre-Acquisition Reorganization;
(vi) adopt or propose except in connection with a plan of liquidation or resolutions providing for the liquidation or dissolution of the Company or any of its Subsidiaries;
(vii) Pre-Acquisition Reorganization, reorganize, amalgamate or merge the Company or any of its Subsidiaries with any other Person;
(vii) except in connection with a Pre-Acquisition Reorganization, reduce the stated capital of the shares of the Company or of any of its Subsidiaries or otherwise change the capital structure of the Company and its Subsidiaries;
(viii) other than as disclosed in Schedule 5.1(b)(viii) of the Company Disclosure Letter, sell, pledge, lease, dispose of, mortgage, licence, encumber or otherwise transfer permit a Lien (other than a Company Permitted Lien) to be created on or agree to sell, pledge, lease, dispose of, mortgage, licence, encumber permit a Lien (other than a Company Permitted Lien) to be created on or otherwise transfer any tangible assets of the Company or any of its Subsidiaries or any interest in any tangible assets of the Company or any of and its SubsidiariesSubsidiaries having a value greater than $2 million in the aggregate, except (A) other than sales of inventory inventory, equipment or obsolete assets in the Ordinary Course, (B) other sales of tangible assets ordinary course and Liens that are incurred in the Ordinary Course subject to a maximum (in terms of value of such assets or interests therein) of $5,000,000 (whether individually or in the aggregate) and (C) Permitted Liensordinary course;
(Aix) acquire (by merger, consolidation, acquisition of shares stock or assets or otherwise) or agree to acquire, directly or indirectly, in one transaction or in a series of related transactions, any Person, (B) or make any investment or agree to make any investmentinvestment (by purchase of shares or securities, contributions of capital (other than to wholly-owned Subsidiaries), property transfer, purchase of any property or assets or otherwise), directly or indirectly, in one transaction or in a series of related transactions, either by purchase of shares or securities, contributions of capital or otherwise (other than to wholly-owned Subsidiaries or in connection with capital expenditures expressly permitted by this Section 5.1), or (C) purchase any property or assets of any other Person, other than for greater certainty pursuant to or in connection with Ordinary Course procurement activities or the acquisition acquisitions of raw materials or inventory assets, equipment and supplies in the Ordinary Courseordinary course that do not exceed 115% of the amounts budgeted for such acquisitions in the Company Budget and, for certainty, excluding capital expenditures permitted by the Company’s Liquidity Management Policy or Section 5.1(b)(xxii);
(x) incur any capital expenditures or enter into or modify any agreement obligating the Company or its Subsidiaries to provide for future capital expenditures other than (A) budgeted capital expenditures that are included in the Company Budget, or (B) any other capital expenditures not to exceed $5,000,000 in the aggregate;
(xi) make any changes in financial accounting methods, principles, policies or practices, except as required, in each case, by IFRS;
(xii) reduce the stated capital of the Company Shares or the shares or any of the Company’s Subsidiaries;
(xiii) incur, create, assume or otherwise become liable for any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities, or guarantee, endorse guarantee or otherwise become responsible for, the obligations of any arm’s length other Person or make any loans or advances, in advances to any such individual case, in an amount in excess of $5,000,000, other than indebtedness owing by one wholly-owned Person that is not a Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company or by the Company to another wholly-owned Subsidiary of the Company and other than Company, except (A) in connection with advances ordinary course working capital needs (including, without limitation, the indebtedness incurred or to be incurred under the Company’s or any Subsidiary’s credit facilities existing on the date hereof in the Ordinary Course;
(xiv) (A) before due and owing, pay, discharge or satisfyCompany Credit Agreement), or (B) waiveletters of credit, releasereclamation bonds, assignfinancial assurances or other guarantees in respect of environmental or other obligations otherwise permitted to be incurred, settle or compromisenot prohibited, any material claims or material liabilities (including any litigation, proceedings or investigation by any Governmental Entity)under this Agreement;
(xvxi) enter into any agreement thatadopt a plan of liquidation or resolutions providing for the winding-up, if entered into prior to the date hereof, would have been a Company Material Contract, liquidation or modify, amend in any material respect, transfer or terminate any Company Material Contract, or waive, release, or assign any material rights or claims thereto or thereunder;
(xvi) enter into or terminate any material interest rate, currency, equity or commodity swaps, xxxxxx, derivatives, forward sales contracts or other financial instruments or like transaction, other than in the Ordinary Course;
(xvii) except as required by the terms of the Company Benefit Plans or any written employment Contracts in effect on the date of this Agreement and disclosed in the Data Room, (A) grant, accelerate, or increase any severance, change of control or termination pay to (or amend any existing arrangement relating to the foregoing with) any director, officer, employee or individual consultant dissolution of the Company or any of its Subsidiaries; ;
(xii) pay, discharge, settle, satisfy, compromise, waive, assign or release any material claims, liabilities or obligations prior to the same becoming due, other than (A) the payment, discharge or satisfaction of liabilities reflected or reserved against in the Company’s financial statements or incurred in the ordinary course, (B) grant, acceleratefor an aggregate amount of no greater than $2 million, or increase any payment, award (equity or otherwise) or other benefits payable to, or for the benefit of, any director, officer, employee or individual consultant of the Company or any of its Subsidiaries, except an annual cash bonus in the Ordinary Course or as may be required to comply with Section 5.3 of this Agreement; (C) increase payment of any fees related to the coverageArrangement;
(xiii) waive, contributionsrelease, funding requirements grant, transfer, exercise, modify or benefits available under amend in any Company Benefit Planmaterial respect, other than in the Ordinary Courseordinary course, (A) any existing material contractual rights in respect of any Company Mineral Interests, or create (B) any new plan material Authorization, lease, concession, contract or other document;
(xiv) take any action or fail to take any action which action or failure to act would result in the material loss, expiration or surrender of, or the loss of any material benefit under, or reasonably be considered expected to cause any Governmental Entities to institute proceedings for the suspension, revocation or limitation of rights under, any material Authorizations necessary to conduct its businesses as now conducted or planned to be a conducted;
(xv) other than as disclosed in Schedule 5.1(b)(xv) of the Company Disclosure Letter, in the ordinary course, in accordance with this Agreement or the Plan of Arrangement, or as is necessary to comply with applicable Laws or the current terms of any Contracts or Company Benefit Plan once createdPlans: (A) grant to any Company Employee an increase in compensation in any form, or grant any general salary increase (other than base salary increases for Company Employees in the ordinary course); (B) make any loan to any Company Employee (other than expense reimbursements in the ordinary course); (C) take any action with respect to the grant of any severance, retention, change of control or bonus to, or enter into any employment agreement, deferred compensation or other similar agreement (or amend any such existing agreement) with any Company Employee; (D) increase any benefits payable under any existing severance or termination pay policies or employment agreements, or adopt or materially amend or make any contribution to any Company Benefit Plan or other bonus, profit sharing, option, pension, retirement, deferred compensation, insurance, incentive compensation, compensation or other similar plan, agreement, trust, fund or arrangement for the benefit of directors or Company Employees or former directors or former Company Employees; (in any form), E) increase bonus levels or other benefits payable to any director, director or executive officer, employee or consultant of the Company or any of its Subsidiaries or grant any general increase in the rate of wages, salaries, bonuses or other remuneration, except in the Ordinary Course; (E) make any material determination under any Company Benefit Plan that is not in the Ordinary Course, other than determinations in furtherance of acceleration, vesting or similar determinations in connection with the transactions described herein; or (F) take or propose any action to effect any of the foregoing;
(xviii) enter into, amend or terminate any employment, severance, consulting, termination or other similar agreement with any of its officers, directors, employees, agents or consultants, or any Company Benefit Plan, in each case, other than (A) severance agreements entered into in connection with terminating employees in the Ordinary Course, (B) offer letters entered into in the Ordinary Course, that do not provide for severance accelerated vesting, removal of restrictions or an exercise of any stock-based or stock-related awards (including stock options); (G) establish, adopt or amend (except as required by applicable Law) any collective bargaining agreement or change in control benefitssimilar agreement; or (H) hire or engage, (C) consulting agreements entered into in or amend the Ordinary Courseterms of employment or engagement of, (D) amendments required by Law or required to maintain the tax-qualified or registered status of any Company Benefit Plan under Section 401(a) of the Code Employee or independent contractor with total annual salaries exceeding $200,000 (other applicable Law orthan to replace any existing Company Employee or independent contractor performing a similar function on substantially similar annual salaries);
Appears in 1 contract
Covenants of the Company Regarding the Conduct of Business. (a) The Company covenants and agrees that that, during the period from the date of this Agreement until the earlier of the Effective Date Time and the time that this Agreement is terminated in accordance with its terms, except except: (Ai) as expressly required or expressly permitted by this Agreement or the Plan of Arrangement Agreement; (including any Pre-Acquisition Reorganization), (Bii) as required by applicable Laws or any Governmental Entity, Entities (Ciii) as expressly set out in with the Company Disclosure Letter express prior written consent of Acquiror; or (including the Company Budget), (Div) as a result of or in connection with any COVID-19 Measures (provided that undertaken by the Company shall consult with the Purchaser and consider in good faith any suggestions of the Purchaser prior to undertaking any COVID-19 Measures), or (E) with the prior written consent of the Purchaser, such consent not to be unreasonably withheld, delayed or conditionedits subsidiaries, the Company shall, and shall cause each of its Subsidiaries material subsidiaries to, and shall exercise its rights (if any) with respect to the Joint Ventures to cause the Joint Ventures to:
(i) conduct its and their respective businesses business in the Ordinary Course; and
(ii) use commercially reasonable efforts to preserve intact its and their present ordinary course of business organization, goodwill, business relationships and assets and to keep available the services of its and their officers and employees as a group.
(b) consistent with past practice. Without limiting the generality of Section 5.1(a)the foregoing, the Company covenants and agrees that during the period from the date of this Agreement until the earlier of the Effective Date Time and the time that this Agreement is terminated in accordance with its terms, except except: (Ai) as expressly required or expressly permitted by this Agreement or the Plan of Arrangement Agreement; (including any Pre-Acquisition Reorganization), (Bii) as required by applicable Laws or any Governmental Entity, Entities (C) as expressly set out in the Company Disclosure Letter (including the Company Budget), or (Diii) with the express prior written consent of Acquiror; (iv) in connection with any COVID-19 Measures undertaken by the Purchaser, such consent not to be unreasonably withheld, delayed Company or conditionedits subsidiaries; or (v) as set out in Schedule 5.1 of the Company Disclosure Letter, the Company shall not, and nor shall cause each it permit any of its Subsidiaries not material subsidiaries to, and shall exercise its rights (if any) with respect to the Joint Ventures to cause the Joint Ventures not to direct directly or indirectly:, without the prior written consent of Acquiror (which consent shall not be unreasonably withheld or delayed):
(a) (i) amend its notice of articles, articles charter or by-laws or other constating comparable organizational documents;
; (ii) issue, sell, grant, award, pledge, dispose of or otherwise encumber or agree to issue, sell, grant, award, pledge, dispose of or otherwise encumber any Company Shares or other equity or voting interests or any options, share appreciation rights, warrants, calls, conversion or exchange privileges or rights of any kind to acquire (whether on exchange, exercise, conversion or otherwise) any Company Shares or other equity or voting interests or other securities or, other than issuances by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company or in respect of Permitted Liens, any shares of its Subsidiaries (including, for greater certainty, Company Options or any other equity based awards), other than pursuant to (A) the exercise or vesting of Company Options or Company RSUs in accordance with their terms, (B) the grants of Company Options and Company RSUs set out in Section 5.1(b)(ii) of the Company Disclosure Letter or (C) contributions of capital made by the Company or one of its Subsidiaries to a Joint Venture in connection with the funding of capital expenditures expressly permitted by this Section 5.1 or required to be made by this Agreement;
(iii) split, combine or reclassify any outstanding shares in the capital of the Company Shares or the securities of any of its Subsidiaries;
(iv) material subsidiaries, or declare, set aside or pay any dividend or make any other distribution or payment (whether in cash, securities, securities or property or any combination thereof), ) in respect of the Company Shares owned by any person or the securities of any subsidiary owned by a person other than the Permitted Dividends and dividends or distributions from one Company other than, in the case of any subsidiary wholly-owned Subsidiary of by the Company Company, any dividends payable to the Company or another any other wholly-owned Subsidiary subsidiary of the Company; (iii) issue, grant, deliver, sell or pledge, or agree to issue, grant, deliver, sell or pledge, any Company RSUs, Company PSUs, Company DSUs, shares of the Company or by a Joint Venture in the Ordinary Course;
(v) redeemits material subsidiaries, purchase or any rights convertible into or exchangeable or exercisable for, or otherwise acquire or offer evidencing a right to purchase or otherwise acquire Company Shares acquire, shares or other securities of the Company or any securities of its Subsidiariesmaterial subsidiaries, other than than: (A) the acquisition issuance of securities the Company Shares pursuant to the terms of any the outstanding Company Options or Company Incentive Awards, as applicable; (B) transactions in the ordinary course of business and consistent with past practices between two or more Company wholly-owned Subsidiary subsidiaries or between the Company and a Company wholly-owned subsidiary; and (C) as required under applicable Law or existing Material Contracts set forth in Schedule 3.1(w) of the Company by Disclosure Letter; (iv) redeem, purchase or otherwise acquire, or offer to redeem, purchase or otherwise acquire, any outstanding securities of the Company or by any of its subsidiaries (other Subsidiary than any redemption of Company RSUs, Company PSUs or Company DSUs in accordance with their terms); (v) amend the Company;
terms of any of its securities; (vi) adopt or propose a plan of liquidation or resolutions resolution providing for the liquidation or dissolution of the Company or any of its Subsidiariesmaterial subsidiaries; (vii) amend its accounting policies or adopt new accounting policies, in each case except as required in accordance with IFRS; or (viii) enter into any agreement with respect to any of the foregoing;
(viib) reorganize, amalgamate except in the ordinary course of business consistent with past practice or merge as provided in the Company or its Subsidiaries with any other Person;
Company's budget provided on Schedule 5.1(b): (viiii) sell, pledge, hypothecate, lease, dispose oflicense, sell and lease back, mortgage, licence, dispose of or encumber or otherwise transfer transfer, any assets, securities, properties, interests or agree to sell, pledge, lease, dispose of, mortgage, licence, encumber or otherwise transfer any tangible assets businesses of the Company or any of its Subsidiaries or any interest in any tangible assets of the Company or any of its Subsidiariesmaterial subsidiaries for an amount greater than $2 million, except (A) sales of inventory or obsolete assets in the Ordinary Course, (B) other sales of tangible assets in the Ordinary Course subject to a maximum (in terms of value of such assets or interests therein) of $5,000,000 (whether individually or in the aggregate) and ; (C) Permitted Liens;
(Aii) acquire (by merger, consolidationamalgamation, consolidation or acquisition of shares or assets or otherwise) or agree to acquire), directly or indirectly, in one transaction any assets, securities, properties, interests, businesses, corporation, partnership or in a series of related transactionsother business organization or division thereof, any Person, (B) or make any investment or agree to make any investment, directly or indirectly, in one transaction or in a series of related transactions, either by the purchase of shares or securities, contributions contribution of capital or otherwise (other than to wholly-owned Subsidiaries or in connection with capital expenditures expressly permitted by this Section 5.1)capital, property transfer, or (C) purchase of any other property or assets of any other Personperson, other for an amount greater than for greater certainty pursuant to or in connection with Ordinary Course procurement activities or the acquisition of raw materials or inventory in the Ordinary Course;
(x) incur any capital expenditures or enter into or modify any agreement obligating the Company or its Subsidiaries to provide for future capital expenditures other than (A) budgeted capital expenditures that are included in the Company Budget$2 million, or (B) any other capital expenditures not to exceed $5,000,000 in the aggregate;
; (xi) make any changes in financial accounting methods, principles, policies or practices, except as required, in each case, by IFRS;
(xii) reduce the stated capital of the Company Shares or the shares or any of the Company’s Subsidiaries;
(xiiiiii) incur, create, assume or otherwise become liable for for, any indebtedness for borrowed money or any other liability or obligation or issue any debt securitiessecurities or assume, or guarantee, endorse or otherwise as an accommodation become responsible for, for the obligations of any arm’s length Person or make other person; (iv) take any loans or advancesaction with respect to the Company Credit Facilities to drawdown any amount greater than $2 million, in any such individual casethe aggregate, in an amount in excess of $5,000,000or to refinance, prepay, or otherwise amend the terms thereof, other than indebtedness owing by one wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company or by the Company to another wholly-owned Subsidiary of the Company and other than any actions taken in connection accordance with advances under the Company’s or any Subsidiary’s credit facilities existing on the date hereof in the Ordinary Course;
this Agreement; (xivv) (A) before due and owing, pay, discharge or satisfy, satisfy any material liabilities or obligations other than in respect of Company Transaction Costs and Company Employee Costs; (Bvi) waive, release, assigngrant or transfer any rights of material value; (vii) enter into new commitments of a capital expenditure nature in excess of $2 million, settle in the aggregate, except in accordance with the Company's budget provided on Schedule 5.1(b); or compromise(viii) authorize or propose any of the foregoing, or enter into any material claims or material liabilities (including agreement to do any litigation, proceedings or investigation by any Governmental Entity)of the foregoing;
(xvc) other than in the ordinary course of business consistent with past practice and as is necessary to comply with applicable Laws or Contracts, or in accordance with the Company Benefit Plans: (i) grant to any officer, employee or director of the Company or any of its subsidiaries an increase in compensation in any form, or grant any general salary increase; (ii) make any loan to any officer, employee, or director of the Company or any of its subsidiaries; (iii) take any action with respect to the grant of any severance, change of control, bonus or termination pay to, or enter into any employment agreement, deferred compensation or other similar agreement (or amend any such existing agreement) with any officer, employee or director of the Company or any of its subsidiaries; (iv) increase any benefits payable under any existing severance or termination pay policies or employment agreements, or adopt or materially amend or make any contribution to any Company Benefit Plan or other bonus, profit sharing, option, pension, retirement, deferred compensation, insurance, incentive compensation, compensation or other similar plan, agreement, trust, fund or arrangement for the benefit of directors, officers or employees or former directors, officers, employees of the Company or any of its subsidiaries; (v) increase bonus levels or other benefits payable to any director, officer or employee of the Company or any of its subsidiaries; (vi) establish, adopt or amend (except as required by applicable Law) any collective bargaining agreement or similar agreement; or (vii) provide for accelerated vesting, removal of restrictions on exercise of any stock based or stock related awards (including Company Incentive Awards) upon a change of control occurring on or prior to the Effective Time;
(d) settle, pay, discharge, satisfy, compromise, waive, assign or release, in an amount greater than $2 million: (i) any material action, claim or proceeding brought against the Company and/or any of its subsidiaries; or (ii) any action, claim or proceeding brought by any present, former or purported holder of its securities in connection with the transactions contemplated by this Agreement or the Plan of Arrangement;
(e) enter into any agreement thator arrangement that limits or otherwise restricts in any material respect the Company or any of its material subsidiaries or any successor thereto, or that would, after the Effective Time, limit or restrict in any material respect the Company or any of its material subsidiaries from competing in any manner;
(f) waive, release or assign any material rights, claims or benefits of the Company or any of its material subsidiaries;
(g) other than in the ordinary course of business consistent with past practice, enter into any agreement that if entered into prior to the date hereof, hereof would have been be a Company Material Contract, ; or modify, amend in any material respect, transfer or terminate any Company Material Contract, or waive, release, release or assign any material rights or claims thereto or thereunder;
(xvih) enter into any agreement, take any action or terminate fail to take any action that would result in any material interest ratebreach of any royalty arrangements for the Company Properties, currencyincluding, equity or commodity swapsfor greater certainty, xxxxxx, derivatives, forward sales contracts or other financial instruments or like transaction, other than in the Ordinary CourseCompany Royalties;
(xviii) except change any method of Tax accounting, make or change any Tax election, file any materially amended Return, settle or compromise any Tax liability in excess of $2 million, agree to an extension or waiver of the limitation period with respect to the assessment, reassessment or determination of Taxes, enter into any closing agreement with respect to any Tax or surrender any right to claim a material Tax refund;
(j) take any action or fail to take any action which action or failure to act would result in the material loss, expiration or surrender of, or the loss of any material benefit under, or reasonably be expected to cause any Governmental Entity to institute proceedings for the suspension, revocation or limitation of rights under, any material Permits or any approvals of or from any Governmental Entity necessary to conduct its businesses as required now conducted or as proposed to be conducted; or fail to prosecute with commercially reasonable due diligence any pending applications to any Governmental Entities for approvals; or
(k) agree, resolve or commit to do any of the foregoing. The Company shall use its commercially reasonable efforts to cause the current insurance (or re-insurance) policies maintained by the terms Company or any of its subsidiaries, including directors' and officers' insurance, not to be cancelled or terminated or any of the Company Benefit Plans coverage thereunder to lapse, unless simultaneously with such termination, cancellation or any written employment Contracts lapse, replacement policies underwritten by insurance or re-insurance companies of nationally recognized standing having comparable deductions and providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in effect on the date of this Agreement full force and disclosed in the Data Roomeffect; provided that, (A) grantsubject to Section 7.5(a), accelerate, or increase any severance, change of control or termination pay to (or amend any existing arrangement relating to the foregoing with) any director, officer, employee or individual consultant none of the Company or any of its Subsidiaries; subsidiaries shall obtain or renew any insurance (Bor re-insurance) grantpolicy for a term exceeding 12 months without prior consultation with Acquiror. Subject to applicable Law, accelerate, the Company shall keep Acquiror informed as to all material decisions or increase any payment, award (equity or otherwise) or other benefits payable to, or for actions required to be made with respect to the benefit of, any director, officer, employee or individual consultant operations of the Company or any business of its Subsidiariesthe Company; provided, except an annual cash bonus however, that the failure to do so shall not constitute a breach of this Agreement that, in the Ordinary Course or as and of itself, may be required lead to comply with Section 5.3 termination of this Agreement; (C) increase . The Company shall promptly notify Acquiror in writing of any circumstance or development that, to the coverage, contributions, funding requirements or benefits available under any Company Benefit Plan, other than in the Ordinary Course, or create any new plan which would be considered to be a Company Benefit Plan once created; (D) increase compensation (in any form), bonus levels or other benefits payable to any director, officer, employee or consultant knowledge of the Company or any of its Subsidiaries or grant any general increase in Company, would constitute a Material Adverse Effect with respect to the rate of wages, salaries, bonuses or other remuneration, except in the Ordinary Course; (E) make any material determination under any Company Benefit Plan that is not in the Ordinary Course, other than determinations in furtherance of acceleration, vesting or similar determinations in connection with the transactions described herein; or (F) take or propose any action to effect any of the foregoing;
(xviii) enter into, amend or terminate any employment, severance, consulting, termination or other similar agreement with any of its officers, directors, employees, agents or consultants, or any Company Benefit Plan, in each case, other than (A) severance agreements entered into in connection with terminating employees in the Ordinary Course, (B) offer letters entered into in the Ordinary Course, that do not provide for severance (except as required by applicable Law) or change in control benefits, (C) consulting agreements entered into in the Ordinary Course, (D) amendments required by Law or required to maintain the tax-qualified or registered status of any Company Benefit Plan under Section 401(a) of the Code or other applicable Law orCompany.
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