Covenants of the Offeror. Each of Agnico-Eagle and the Bidco covenants and agrees that, except as contemplated in this Agreement, until the Expiry Time or the day upon which this Agreement is terminated, whichever is earlier:
(a) it shall use its reasonable best efforts to, prior to or at the time of issue of the Agnico-Eagle Shares to be issued pursuant to the Offer, have declared effective a registration statement on Form F-8, F-80 or F-10 registering such shares under the United States Securities Act of 1933, as amended;
(b) it shall use its reasonable best efforts to effect the listing of the Agnico-Eagle Shares to be issued pursuant to the Offer on the TSX and the NYSE at the time of issue of such shares;
(c) it shall not take any action, or refrain from taking any action or permit any action to be taken or not taken inconsistent with this Agreement or which would reasonably be expected to significantly impede the consummation of the Offer;
(d) it shall make or cooperate as necessary in the making of all necessary filings and applications under all applicable laws required in connection with the transactions contemplated herein and take all reasonable action necessary to be in compliance with such laws;
(e) it shall use its reasonable best efforts to conduct its affairs so all of its representations and warranties contained herein shall be true and correct in all material respects on and as of the Expiry Time as if made thereon; and
(f) it will use its reasonable best efforts to complete the Subsequent Acquisition Transaction referred to in Section 2.6 as soon as reasonably practicable after completion of the Offer.
Covenants of the Offeror. The Offeror shall, perform all obligations required to be performed by it under this Agreement, co-operate with the Target in connection therewith, and do all such other 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 and, without limiting the generality of the foregoing:
(a) the Offeror shall, subject to the terms and conditions of this Agreement, make the Offer, which Offer shall be made by the Offeror in compliance with Applicable Securities Laws;
(b) the Offeror shall, subject to the terms and conditions of the Offer, take-up the Target Shares validly deposited under the Offer and not withdrawn and pay for such Target Shares in accordance with the Offer and Applicable Securities Laws; and
(c) the Offeror shall apply for and use all commercially reasonable efforts to obtain all appropriate regulatory approvals relating to the Offeror or any of its subsidiaries and, in doing so, to keep the Target reasonably informed as to the status of the proceedings related to obtaining the appropriate regulatory approvals, including providing the Target with copies of all related applications and notifications, in draft form, in order for the Target to provide its comments thereon.
Covenants of the Offeror. The Offeror hereby covenants and agrees that, unless the Seller shall otherwise agree in writing or as otherwise expressly contemplated or permitted by this Agreement:
(a) subject to the terms and conditions of the Offer, Offeror shall take up the Seller’s Shares deposited under the Offer and pay for such Seller’s Shares as set forth in the Circular; and
(b) Offeror shall use all reasonable commercial efforts, including co-operating with the Seller, to make all requisite regulatory filings in order to obtain all requisite regulatory approvals required to effect and complete the Offer. Offeror further covenants and agrees that all Offeror Common Shares issuable to the Seller as consideration under the Offer shall be authorized for issuance and shall be duly and validly issued shares of the common stock of the Offeror.
Covenants of the Offeror. The Offeror covenants and agrees that, except as contemplated in this Agreement, until the Expiry Time or the day upon which this Agreement is terminated, whichever is earlier:
(a) the Offeror shall use reasonable best efforts to preserve intact its business organizations;
(b) the Offeror shall (i) make the Offer to Shareholders resident in the United States in compliance with applicable provisions of the U.S. Securities Laws, including, but not limited to, the applicable provisions of Regulation 14E of the Exchange Act the provisions of the U.S. Securities Act that apply to an exchange offer registered on Form F-10 and (ii) shall cause the New Gold Shares to be issued pursuant to the Offer to be issued pursuant to an effective registration statement filed by the Offeror under the U.S. Securities Act on Form F-10;
(c) the Offeror shall prepare and file with the applicable Regulatory Authorities, including the NYSE MKT and the TSX as contemplated herein, all necessary applications and forms required in order to permit the valid issue and listing of New Gold Shares (on such exchanges) issued pursuant to the Offer; and
(d) the Offeror shall not, directly or indirectly, do or permit to occur any of the following without the prior consent of the Company:
(i) amend its articles or by-laws or the terms of its shares in a manner that could have a material adverse effect on the market price or value of the New Gold Shares to be issued pursuant to the Offer;
(ii) split, consolidate or reclassify any of its shares nor undertake any other capital reorganization;
(iii) reduce capital in respect of its shares; or
(iv) take any action that could reasonably be expected to interfere with or be inconsistent with the consummation of the Offer or the transactions contemplated in this Agreement.
Covenants of the Offeror. The Offeror hereby covenants and agrees that, unless the Seller shall otherwise agree in writing or as otherwise expressly contemplated or permitted by this Agreement:
(a) subject to the terms and conditions of the Offer, Bidco shall take up the Seller’s Shares deposited under the Offer and pay for such Seller’s Shares as set forth in the Circular;
(b) in the event that:
(i) the Offeror shall have waived the Minimum Tender Condition; and
(ii) the Offeror shall have taken up and paid for the Seller’s Shares under its Offer; and
(iii) there shall also exist a Competing Bid in which the offered price per Subject Share exceeds C$1.00 (a Superior Bid); then the Offeror shall not, directly or indirectly, in connection with such Superior Bid, tender the Seller’s Shares that it acquired under the Offer to such Superior Bid or vote the Seller’s Shares that it acquired under the Offer in favour of any shareholder resolution in furtherance of such Superior Bid; and
(c) the Offeror shall use all reasonable commercial efforts, including co-operating with the Seller, to make all requisite regulatory filings in order to obtain all requisite regulatory approvals required to effect and complete the Offer. The Offeror further covenants and agrees that all Parent Common Shares issuable to the Seller as consideration under the Offer shall be authorized for issuance and shall be duly and validly issued shares of the common stock of the Parent.
Covenants of the Offeror. Upon execution of this Agreement, the Offeror will:
(a) as soon as practicable, and in any event not later than September 24, 1999, make a take-over bid (the date of such bid, the "Proposed Offer Date") to purchase 100% of the SV Shares issued and outstanding as of such date, on substantially the terms and conditions summarized in Schedule A forming part of this Agreement;
(b) subject to the satisfaction of the terms and conditions of the Offer, take-up and pay for SV Shares tendered under the Offer in accordance with Canadian securities laws and United States securities laws, if applicable; and
(c) upon the last take-up and payment of SV Shares under the Offer, proceed expeditiously with a compulsory acquisition transaction whereby holders of SV Shares will receive cash consideration per Share at least equal to the consideration payable pursuant to the Offer. The Offeror will mail the Offer and accompanying take-over bid circular (such circular, together with the Offer, being referred to herein as the "Bid Circular") in accordance with applicable laws to each holder of SV Shares (a "Shareholder") as soon as reasonably practicable and not later than 11:59 p.m. (Toronto time) on September 24, 1999 (such time on such date being referred to herein as the "Latest Mailing Time"); provided, however, that if the mailing of the Offer is delayed by (i) an injunction or order made by a Governmental Entity of competent jurisdiction or (ii) the Offeror not having obtained any regulatory waiver, consent or approval which is necessary to permit it to mail the Offer then, provided that such injunction or order is being contested or appealed or such regulatory waiver, consent or approval is being actively sought, as applicable, the Latest Mailing Time shall be extended for a period ending on the fifth business day following the date on which such injunction or order ceases to be in effect or such waiver, consent or approval is obtained, as applicable, provided however that if such event has not occurred by November 30, 1999 this Agreement will terminate. The Company and its financial and legal advisors shall be given a reasonable opportunity to review the Bid Circular prior to it being mailed to holders of record of SV Shares and filed with applicable securities regulatory authorities. The Offeror shall provide each registered holder of SV Shares and the company with a final copy of the Bid Circular to be mailed to all registered holders of SV Shares. The Offeror shall fi...
Covenants of the Offeror. The Offeror covenants and agrees with each Dealer Manager that:
(a) The Offeror shall prepare the Transaction Materials in a form reasonably approved by the Lead Dealer Manager and timely file the required Transaction Materials with the Commission following its preparation. The Offeror shall not, prior to expiration of the Transactions, make any amendment or supplement to the Registration Statement, Prospectus or other Transaction Materials which shall be reasonably disapproved by the Lead Dealer Manager promptly after reasonable notice. The Offeror shall advise the Dealer Managers, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or when any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Dealer Managers with copies thereof; file promptly all reports and any definitive proxy or information statements required to be filed by the Offeror with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for as long as the delivery of a prospectus is required in connection with the offering or sale of the New Notes; advise each Dealer Manager (and, if in writing, provide each Dealer Manager with a copy), promptly after it receives notice thereof, of the issuance by the Commission or any other governmental authority of any stop order or of any order preventing or suspending any or all of the Transactions or the use of any Transaction Materials, of the suspension of the Consent Solicitation or of the qualification of the New Notes for offering or sale in any jurisdiction, of the initiation or threat of any proceeding for any such purpose, or of any request by the Commission or any other governmental authority for the amending or supplementing of any Transaction Materials or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Transaction Materials or suspending the Consent Solicitation or any such qualification, promptly use its best efforts to obtain the withdrawal of such order.
(b) The Offeror will cause to be delivered to each registered holder of any Outstanding Notes, as soon as practicable, a copy of the Prospectus and the Letter of Transmittal, together with a return envelope, and other appropriate Transaction Materials and Other Material. Thereafter, to the extent practicable u...
Covenants of the Offeror. The Offeror covenants and agrees that, during the period commencing with the date hereof and ending on the Sunset Date, unless Asia Pacific shall otherwise agrees in writing or as otherwise expressly contemplated or permitted by this Agreement, the following shall apply.
Covenants of the Offeror. 2.1 Offeror to Make Offer The Offeror agrees with each Shareholder that it shall comply with the terms of the Support Agreement and, without limiting the generality of the foregoing, the Offeror shall make or cause to be made the Offer for US$12.00 per Share having the terms and conditions thereto set forth in the Support Agreement and as required by the provisions of the Support Agreement. In the event that another entity affiliated with the Offeror makes the Offer in accordance with the terms and conditions of the Support Agreement, the Offeror shall cause such other entity to become a party to this Agreement, upon which such other entity shall become entitled to exercise all of the rights of the Offeror and subject to all of the obligations of the Offeror under this Agreement but the Offeror shall continue to be jointly and severally liable for all such obligations.
Covenants of the Offeror. The Offeror covenants and agrees that, except as contemplated in this Agreement, until the Expiry Time or the day upon which this Agreement is terminated, whichever is earlier:
(a) the Offeror shall conduct its business or other activity only in, not take any action except in, and maintain its facilities in the Ordinary Course;
(b) without limiting the generality of Section 3.2(a), except (i) for transactions in the Ordinary Course, or (ii) for transactions solely involving the Offeror and one or more of its Subsidiaries or between Subsidiaries, the Offeror shall not and shall cause each Subsidiary to not, directly or indirectly, do or permit to occur any of the following:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or agree to issue, sell, grant, pledge, lease, dispose of or encumber any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares or other securities of, the Offeror or any of its Subsidiaries;
(ii) amend or propose to amend the articles, by-laws or other constating documents of the Offeror or any of its Subsidiaries;
(iii) split, combine or reclassify any outstanding shares, or declare, set aside or pay any dividend or other distribution payable in cash, stock, property or otherwise with respect to the shares or other securities owned by any person;
(iv) redeem, purchase or offer to purchase any shares or other securities of the Offeror or any shares or other securities of its Subsidiaries;
(v) amend the Lock-Up Agreements, other than to allow the Locked-Up Unitholders to elect the accept the Cash Offer in the event the Offeror has obtained incremental additional financing to permit such election; or
(vi) terminate the Lock-Up Agreements, other than in accordance with their terms (excluding termination by mutual consent of the parties thereto);
(c) it shall use reasonable commercial efforts to obtain any required exemption orders, consents or approvals and file any such documents, as may be required under Applicable Laws to permit the Offeror to amend the Offer and perform its other obligations hereunder;
(d) it shall use reasonable commercial efforts to satisfy (or cause the satisfaction of) the conditions of the Offer set forth in Schedule “A” to the extent the same is within its control, and use reasonable commercial efforts to take, or cause to be taken, all other action and do, or cause to be done, all other things necessary, proper or advisable unde...
