Covenants of the Securityholder. The Securityholder covenants and agrees that, until the earlier of: (i) the closing of the Proposed Transaction and (ii) the date this Agreement is terminated in accordance with its terms, the Securityholder shall: (a) attend (either in person or by proxy) any AuRico Arrangement Meeting (including any adjournments and postponements thereof), and at the AuRico Arrangement Meeting, vote or cause to be voted all of: (i) the Shares; (ii) any Shares acquired by or issued to the Securityholder on or following the date hereof (including any common shares of AuRico issued upon the exercise, Options, PSUs, RSUs or DSUs); (iii) the Options, PSUs, RSUs or DSUs; and (iv) any Options, PSUs, RSUs or DSUs acquired by or issued to the Securityholder on or following the date hereof, that are beneficially owned by, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted at the AuRico Arrangement Meeting (the “Subject Securities”) in favour of the Proposed Transaction and all matters related thereto; (b) vote or cause to be voted (in person or by proxy) at any meeting of the securityholders of AuRico any Subject Securities against, or not tender or cause to be tendered any Subject Securities to: (i) any corporate transaction, such as a merger, amalgamation, arrangement, rights offering, reorganization, recapitalization, or liquidation or take-over bid, sale or transfer of a material amount of assets of AuRico or similar transaction involving AuRico or the common shares of AuRico other than the Proposed Transaction and any transaction related thereto; (ii) the issuance of any securities of AuRico (other than pursuant to the exercise of Options or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto; (iii) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, or adversely affect in any material respect the Proposed Transaction including, without limitation, any AuRico Acquisition Proposal; or (iv) any action or agreement that would result in a breach of any representation, warranty, or covenant or other obligation of AuRico in the Arrangement Agreement; (c) upon the request or direction of Alamos, execute a proxy in respect of any resolution referred to in Section 3(b), and have all of its Subject Securities counted or not counted (as directed by Alamos) as part of a quorum in connection with any meeting of securityholders of AuRico relating to matters set forth in Section 3(b); (d) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolution; (e) not, without the prior written consent of Alamos, sell, transfer, assign, pledge, encumber or otherwise dispose of, or enter into any agreement or understanding relating to the sale, transfer, assignment, pledge, encumbrance or other disposition of, the Subject Securities or any interest therein (other than as contemplated herein), provided, however, that nothing contained herein shall prohibit the Securityholder from exercising any Options or settling any PSUs, RSUs or DSUs for cash and/or common shares of AuRico, as applicable (it being understood that such Securities will be voted in accordance with Section 3(a)); (f) not, except as required pursuant to this Agreement, grant or agree to grant any proxy or other right to vote the Subject Securities or enter into any voting trust or pooling agreement or arrangement or enter into or subject any of the Subject Securities to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting or tendering thereof or revoke any proxy granted pursuant to this Agreement; (g) not exercise any rights of dissent or appraisal in respect of any resolution approving the Proposed Transaction or any aspect thereof or matter related thereto, and not exercise any other securityholder rights or remedies available at common law or pursuant to applicable corporate or securities law or other legislation or not take any action that is reasonably likely to in any manner impede, interfere with, delay, postpone, hinder, prevent, or challenge the Proposed Transaction; (h) not, subject to Section 7, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectly: (i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, permitting any visit to any facilities or entering into any form of agreement, arrangement or understanding) any inquiries or proposals, whether publicly or otherwise, regarding an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal; (ii) enter into, engage, continue or participate in any negotiations or discussions regarding, or provide any non-public information with respect to AuRico or any of its subsidiaries, or offer or provide access to the business, properties, assets, books or records of AuRico or any of its subsidiaries or otherwise cooperate in any way with, any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal; (iii) requisition or join in the requisition of any meeting of the securityholders of AuRico for the purpose of considering any resolution; or (iv) solicit or arrange or provide assistance to any other person to arrange for the solicitation of, proxies relating to or purchases of or offers to sell common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico for the purpose of influencing the voting of common shares of AuRico or affecting the control of AuRico, other than, in the case of proxy solicitation, in support of the Proposed Transaction; (i) promptly notify Alamos upon any of undersigned’s representations or warranties contained in this Agreement becoming untrue or incorrect in any material respect prior to the termination of this Agreement. The Securityholder acknowledges and agrees that any Options, PSUs, RSUs and DSUs held by him or her, to the extent not exercised or settled, shall be treated in accordance with the Arrangement and he or she shall take all steps required of him or her to give effect to such treatment.
Appears in 2 contracts
Samples: Voting and Support Agreement (Alamos Gold Inc), Arrangement Agreement (Alamos Gold Inc)
Covenants of the Securityholder. The Securityholder covenants and agrees agrees, solely in his or her capacity as a securityholder of MPX and not in any capacity as a director or officer thereof, that, until the earlier of: (i) the closing of the Proposed Transaction Effective Time; and (ii) the date this the Arrangement Agreement is terminated in accordance with its terms, the Securityholder shall:
(a) attend (either in person or by proxy) any AuRico Arrangement Meeting meeting of the securityholders of MPX held to consider the Transaction (including any adjournments and postponements thereof) (the “MPX Meeting”), and at the AuRico Arrangement MPX Meeting, vote or cause to be voted all of: :
(i) the Shares; ,
(ii) the Convertible Securities; and
(iii) any Shares or Convertible Securities acquired by or issued to the Securityholder on or following the date hereof (Effective Date, including Shares subsequently issued on the exercise or conversion of any common shares of AuRico issued upon the exercise, Options, PSUs, RSUs or DSUs); (iii) the Options, PSUs, RSUs or DSUs; and (iv) any Options, PSUs, RSUs or DSUs acquired by or issued to the Securityholder on or following the date hereofConvertible Securities, that are beneficially owned by, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted at the AuRico Arrangement MPX Meeting in favour of the Transaction and all matters related thereto (the “Subject Securities”) in favour of the Proposed Transaction and all matters related thereto);
(b) vote or cause to be voted (in person or by proxy) at any meeting of the securityholders of AuRico MPX any Subject Securities against, or not tender or cause to be tendered any Subject Securities to:
(i) any corporate transaction, such as a merger, amalgamation, arrangement, rights offering, reorganization, recapitalization, or liquidation or take-over bid, sale or transfer of a material amount of assets of AuRico MPX or similar transaction involving AuRico MPX or the common shares of AuRico any securities thereof, other than the Proposed Transaction and any transaction related thereto;
(ii) the issuance of any securities of AuRico MPX (other than pursuant to the exercise of Options Convertible Securities, or the settlement other securities convertible into securities of PSUs, RSUs or DSUsMPX) other than the Proposed Transaction and any transaction related thereto;; or
(iii) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, with or adversely affect in any material respect delay the Proposed Transaction including, without limitation, any AuRico MPX Acquisition Proposal; or
(iv) any action or agreement that would result in a breach of any representation, warranty, or covenant or other obligation of AuRico in the Arrangement Agreement;
(c) upon the request or direction of Alamos, execute a proxy in respect of any resolution referred to in Section 3(b), and have all of its Subject Securities counted or not counted (as directed by Alamos) as part of a quorum in connection with any meeting of securityholders of AuRico relating to matters set forth in Section 3(b);
(d) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolution;
(e) not, without the prior written consent of AlamosiAnthus, sell, transfer, assign, pledge, encumber or otherwise dispose of, or enter into any agreement or understanding relating to the sale, transfer, assignment, pledge, encumbrance or other disposition of, the Subject Securities or any interest therein (therein, other than as contemplated herein)pursuant to the Arrangement Agreement, providedor this Agreement, however, that nothing contained herein shall prohibit the Securityholder from exercising pursuant to any Options or settling any PSUs, RSUs or DSUs for cash and/or common shares exercise of AuRico, as applicable (it being understood that such Convertible Securities will be voted in accordance with Section 3(a))their terms, or pursuant to any customary brokerage account agreements; except that from and after the date of the MPX Meeting, the Securityholder shall be entitled to, without the consent of iAnthus, sell, transfer, assign, pledge, encumber or otherwise dispose of, the Subject Securities, provided that any sales of Subject Securities permitted to be made during the term of this Agreement shall be made in an orderly fashion as market conditions permit;
(fd) not, except as required pursuant to this Agreement, grant or agree to grant any proxy or other right to vote the Subject Securities or enter into any voting trust or pooling agreement or arrangement or enter into or subject any of the Subject Securities to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting or tendering thereof or revoke any proxy granted pursuant to this Agreement;
(ge) not exercise any rights of dissent or appraisal in respect of any resolution approving the Proposed Transaction or contest the approval of the Transaction by any aspect thereof or matter related thereto, and not exercise any other securityholder rights or remedies available at common law or pursuant to applicable corporate or securities law or other legislation or not take any action that is reasonably likely to in any manner impede, interfere with, delay, postpone, hinder, prevent, or challenge the Proposed Transaction;Governmental Entity; and
(hf) not, subject to Section 7, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing5, directly or indirectly:
(i) solicit, assist, initiate, knowingly encourage or otherwise knowingly facilitate (including by way of furnishing information, knowingly permitting any visit to any facilities or entering into any form properties of agreement, arrangement or understandingMPX) any inquiries or proposals, whether publicly that may reasonably be expected to constitute or otherwise, regarding an AuRico Acquisition Proposal or potential AuRico lead to a MPX Acquisition Proposal;
(ii) enter into, engage, continue or participate in any negotiations or discussions regardingregarding any inquires, proposals, expressions of interest or provide any non-public information with respect offers that may reasonably be expected to AuRico constitute or any of its subsidiaries, or offer or provide access lead to the business, properties, assets, books or records of AuRico or any of its subsidiaries or otherwise cooperate in any way with, any AuRico Acquisition Proposal or potential AuRico a MPX Acquisition Proposal;
(iii) requisition solicit proxies or join become a participant in the requisition of any meeting solicitation in opposition to or in competition with iAnthus’ purchase of the securityholders Shares as contemplated by the Arrangement Agreement and the Plan of AuRico Arrangement or act jointly or in concert with others with respect to voting securities of MPX for the purpose of considering any resolutionopposing or competing with iAnthus’ purchase of the Shares as contemplated by the Arrangement Agreement; or
(iv) solicit or arrange or provide assistance to take any other person action or any kind, which would reasonably be likely to arrange for adversely affect the solicitation of, proxies relating to or purchases of or offers to sell common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico for the purpose of influencing the voting of common shares of AuRico or affecting the control of AuRico, other than, in the case of proxy solicitation, in support completion of the Proposed Transaction;
(ig) promptly notify Alamos iAnthus upon any of undersignedthe Securityholder’s representations or warranties contained in this Agreement becoming untrue or incorrect in any material respect prior to the termination of this Agreement. The Securityholder acknowledges ;
(h) from time to time, execute and agrees that any Optionsdeliver, PSUsor cause to be executed and delivered, RSUs such additional or further consents, documents and DSUs held by him or her, to the extent not exercised or settled, shall be treated in accordance with the Arrangement other instruments and he or she shall take all steps required other actions reasonably necessary or as iAnthus may reasonably request for the purposes of him or her to give effect to such treatmenteffectively carrying out the transactions contemplated in this Agreement.
Appears in 2 contracts
Samples: Voting and Support Agreement, Voting and Support Agreement
Covenants of the Securityholder. 1.1 The Securityholder acknowledges and agrees that he or she has received a copy of the Merger Agreement.
1.2 The Securityholder hereby covenants and agrees thatagrees, from the date hereof until the earlier of: (i) the closing termination of the Proposed Transaction this Support Agreement pursuant to Article 3 hereof; and (ii) the date this Agreement is terminated Effective Time, except in accordance with its terms, the Securityholder shallterms of this Support Agreement:
(a) attend (either in person or by proxy) any AuRico Arrangement Meeting (including any adjournments and postponements thereof), and at the AuRico Arrangement Meeting, a. to irrevocably vote or cause to be voted at the Company Meeting the Subject Securities in favor of the Merger Resolution and any other resolutions approving matters related to, or resolutions necessary or desirable to implement, the Merger to be considered at the Company Meeting and to deliver a proxy, or to the extent that the Securityholder is a beneficial owner, a voting instruction form, in each case duly completed and executed in respect of all of the Subject Securities, giving effect to such vote no later than ten (10) Business Days prior to the Company Meeting;
b. not to exercise, assert or perfect any (i) rights of appraisal, (ii) rights to dissent in connection with the Merger that the Securityholder may have by virtue of ownership of the Subject Securities, or (iii) any other rights available to the Securityholder to delay, upset or challenge the Merger;
c. not to commence or participate in, and to take all actions necessary to opt out of any class in any class action with respect to, any action, derivative or otherwise, against the Purchaser and/or Acquireco, the Company, or any of their respective successors: (i) challenging the validity of, or seeking to enjoin or delay the operation of, any provision of this Agreement or the Merger Agreement (including any claim seeking to enjoin or delay the Closing); or (ii) to the fullest extent permitted under Law, alleging a breach of any duty of the Company Board, the Purchaser or Acquireco in connection with the Merger Agreement, this Agreement, or the transactions contemplated thereby or hereby;
d. not to exercise any stockholder rights or remedies available at common law pursuant to applicable securities or other laws to delay, hinder, upset or challenge the Merger;
e. not to option, sell, assign, transfer, alienate, dispose of, gift, grant, pledge, create or permit an encumbrance on, grant a security interest in or otherwise convey any Subject Securities or any voting rights attached thereto or any other right or interest therein, or agree to do any of the foregoing, provided that, for the avoidance of doubt: (i) the Shares; Securityholder shall be entitled to exercise any Convertible Securities held by the Securityholder during the term of this Support Agreement, and (ii) any Shares acquired by or Subject Securities issued on exercise of Convertible Securities during the term of this Support Agreement shall be subject to the Securityholder on or following the date hereof (including any common shares terms of AuRico issued upon the exercise, Options, PSUs, RSUs or DSUs); (iii) the Options, PSUs, RSUs or DSUs; and (iv) any Options, PSUs, RSUs or DSUs acquired by or issued to the Securityholder on or following the date hereof, that are beneficially owned by, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted at the AuRico Arrangement Meeting (the “Subject Securities”) in favour of the Proposed Transaction and all matters related thereto;
(b) vote or cause to be voted (in person or by proxy) at any meeting of the securityholders of AuRico any Subject Securities against, or not tender or cause to be tendered any Subject Securities to:
(i) any corporate transaction, such as a merger, amalgamation, arrangement, rights offering, reorganization, recapitalization, or liquidation or take-over bid, sale or transfer of a material amount of assets of AuRico or similar transaction involving AuRico or the common shares of AuRico other than the Proposed Transaction and any transaction related thereto;
(ii) the issuance of any securities of AuRico (other than pursuant to the exercise of Options or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
(iii) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, or adversely affect in any material respect the Proposed Transaction including, without limitation, any AuRico Acquisition Proposal; or
(iv) any action or agreement that would result in a breach of any representation, warranty, or covenant or other obligation of AuRico in the Arrangement this Support Agreement;
(c) upon the request or direction of Alamos, execute a proxy in respect of any resolution referred f. not to in Section 3(b), and have all of its Subject Securities counted or not counted (as directed by Alamos) as part of a quorum in connection with any meeting of securityholders of AuRico relating to matters set forth in Section 3(b);
(d) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolution;
(e) not, without the prior written consent of Alamos, sell, transfer, assign, pledge, encumber or otherwise dispose of, or enter into any agreement or understanding relating to the sale, transfer, assignment, pledge, encumbrance or other disposition of, the Subject Securities or any interest therein (other than as contemplated herein), provided, however, that nothing contained herein shall prohibit the Securityholder from exercising any Options or settling any PSUs, RSUs or DSUs for cash and/or common shares of AuRico, as applicable (it being understood that such Securities will be voted in accordance with Section 3(a));
(f) not, except as required pursuant to this Agreement, grant or agree to grant any proxy or other right to vote the Subject Securities Securities, or enter into any voting trust or pooling agreement or arrangement Merger or enter into or subject any of the such Subject Securities to any other agreement, arrangementMerger, understanding or commitment, formal or informal, with respect to or relating to the voting or tendering thereof or revoke any proxy granted pursuant to this Agreement;
(g) not exercise any rights thereof, other than in support of dissent or appraisal in respect of any the resolution approving the Proposed Transaction or any aspect thereof or matter Merger and other related thereto, and not exercise any other securityholder rights or remedies available matters to be considered at common law or pursuant to applicable corporate or securities law or other legislation or not take any action that is reasonably likely to in any manner impede, interfere with, delay, postpone, hinder, prevent, or challenge the Proposed TransactionCompany Meeting;
(h) not, subject g. not to Section 7, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectly:
(i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, permitting any visit to any facilities or entering into any form of agreement, arrangement or understanding) any inquiries or proposals, whether publicly or otherwise, regarding an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(ii) enter into, engage, continue or participate in any negotiations or discussions regarding, or provide any non-public information with respect to AuRico or any of its subsidiaries, or offer or provide access to the business, properties, assets, books or records of AuRico or any of its subsidiaries or otherwise cooperate in any way with, any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in the requisition of any meeting of the securityholders of AuRico Company Stockholders for the purpose of considering any resolution; or;
h. not to, in any manner, directly or indirectly, including through any Representative, solicit, assist, initiate, or knowingly encourage any inquiries, proposals, offers or public announcements (ivor the submission or initiation of any of the foregoing) from any person regarding any Company Acquisition Proposal, engage in any negotiations concerning, or provide any information to, or have any discussions with or otherwise cooperate with, any person relating to a Company Acquisition Proposal, or otherwise knowingly facilitate or knowingly encourage any effort or attempt to make or implement a Company Acquisition Proposal;
i. not to solicit or arrange or provide assistance to any other person to arrange for the solicitation of, proxies relating to or purchases of or offers to sell common shares of AuRico Company Common Stock or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico Company Preferred Stock or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico Company Common Stock or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico Company Preferred Stock for the purpose of influencing the voting of common shares of AuRico or affecting the control of AuRicothe Company;
j. not to deposit or cause to be deposited the Securityholder’s Subject Securities under any Company Acquisition Proposal;
k. to immediately cease, cause its Representatives to cease and cause to be terminated any existing solicitations, discussions or negotiations with any parties (other thanthan with the Purchaser or the Company or any Representative of the Purchaser or the Company) with respect to any Company Acquisition Proposal or any potential Company Acquisition Proposal; and
l. not to take any action to encourage or assist any other person to do any of the prohibited acts referred to in the foregoing provisions of this Section 1.2.
1.3 Nothing in this Article 1 shall prevent a Securityholder who is a member of the Company Board or is a senior officer of the Company from engaging, in the case Securityholder’s capacity as a director or senior officer of proxy solicitationthe Company, in support discussions or negotiations with a person in response to a Company Acquisition Proposal in circumstances where the Company is permitted by Section 5.1 of the Proposed Transaction;
(i) promptly notify Alamos upon any of undersigned’s representations Merger Agreement to engage in such discussions or warranties contained in this Agreement becoming untrue or incorrect in any material respect prior to negotiations. For greater certainty, the termination of this Agreement. The Securityholder acknowledges and agrees that any Options, PSUs, RSUs and DSUs held by him or her, this Section 1.3 shall not affect the Securityholder’s obligation to vote the extent not exercised or settled, shall be treated in accordance with the Arrangement and he or she shall take all steps required of him or her to give effect to such treatmentSubject Securities.
Appears in 2 contracts
Samples: Merger Agreement (Americas Silver Corp), Support Agreement (Pershing Gold Corp.)
Covenants of the Securityholder. 1.1 The Securityholder acknowledges and agrees that he or she has received a copy of the Merger Agreement.
1.2 The Securityholder hereby covenants and agrees thatagrees, from the date hereof until the earlier of: (i) the closing termination of the Proposed Transaction this Support Agreement pursuant to Article 3 hereof; and (ii) the date this Agreement is terminated Effective Time, except in accordance with its terms, the Securityholder shallterms of this Support Agreement:
(a) attend (either in person or by proxy) any AuRico Arrangement Meeting (including any adjournments and postponements thereof), and at the AuRico Arrangement Meeting, a. to irrevocably vote or cause to be voted at the Purchaser Meeting the Subject Securities in favor of the Purchaser Meeting Resolutions, including the approval of the Purchaser Issuance Resolution and the Purchaser Charter Amendment Resolution, and any other resolutions approving matters related to, or resolutions necessary or desirable to implement, the Purchaser Meeting Resolutions to be considered at the Purchaser Meeting and to deliver a proxy, or to the extent that the Securityholder is a beneficial owner, a voting instruction form, in each case duly completed and executed in respect of all of the Subject Securities, giving effect to such vote no later than ten (10) Business Days prior to the Purchaser Meeting;
b. not to exercise, assert or perfect any rights available to the Securityholder to delay, upset or challenge the Merger;
c. not to commence or participate in, and to take all actions necessary to opt out of any class in any class action with respect to, any action, derivative or otherwise, against the Purchaser and/or Acquireco, the Company, or any of their respective successors: (i) challenging the validity of, or seeking to enjoin or delay the operation of, any provision of this Agreement or the Merger Agreement (including any claim seeking to enjoin or delay the Closing); or (ii) to the fullest extent permitted under Law, alleging a breach of any duty of the Company Board, the Purchaser or Acquireco in connection with the Merger Agreement, this Agreement, or the transactions contemplated thereby or hereby;
d. not to exercise any shareholder rights or remedies available at common law pursuant to applicable securities or other laws to delay, hinder, upset or challenge the Merger;
e. not to option, sell, assign, transfer, alienate, dispose of, gift, grant, pledge, create or permit an encumbrance on, grant a security interest in or otherwise convey any Subject Securities or any voting rights attached thereto or any other right or interest therein, or agree to do any of the foregoing, provided that, for the avoidance of doubt: (i) the Shares; Securityholder shall be entitled to exercise any Convertible Securities held by the Securityholder during the term of this Support Agreement, and (ii) any Shares acquired by or Subject Securities issued on exercise of Convertible Securities during the term of this Support Agreement shall be subject to the Securityholder on or following the date hereof (including any common shares terms of AuRico issued upon the exercise, Options, PSUs, RSUs or DSUs); (iii) the Options, PSUs, RSUs or DSUs; and (iv) any Options, PSUs, RSUs or DSUs acquired by or issued to the Securityholder on or following the date hereof, that are beneficially owned by, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted at the AuRico Arrangement Meeting (the “Subject Securities”) in favour of the Proposed Transaction and all matters related thereto;
(b) vote or cause to be voted (in person or by proxy) at any meeting of the securityholders of AuRico any Subject Securities against, or not tender or cause to be tendered any Subject Securities to:
(i) any corporate transaction, such as a merger, amalgamation, arrangement, rights offering, reorganization, recapitalization, or liquidation or take-over bid, sale or transfer of a material amount of assets of AuRico or similar transaction involving AuRico or the common shares of AuRico other than the Proposed Transaction and any transaction related thereto;
(ii) the issuance of any securities of AuRico (other than pursuant to the exercise of Options or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
(iii) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, or adversely affect in any material respect the Proposed Transaction including, without limitation, any AuRico Acquisition Proposal; or
(iv) any action or agreement that would result in a breach of any representation, warranty, or covenant or other obligation of AuRico in the Arrangement this Support Agreement;
(c) upon the request or direction of Alamos, execute a proxy in respect of any resolution referred f. not to in Section 3(b), and have all of its Subject Securities counted or not counted (as directed by Alamos) as part of a quorum in connection with any meeting of securityholders of AuRico relating to matters set forth in Section 3(b);
(d) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolution;
(e) not, without the prior written consent of Alamos, sell, transfer, assign, pledge, encumber or otherwise dispose of, or enter into any agreement or understanding relating to the sale, transfer, assignment, pledge, encumbrance or other disposition of, the Subject Securities or any interest therein (other than as contemplated herein), provided, however, that nothing contained herein shall prohibit the Securityholder from exercising any Options or settling any PSUs, RSUs or DSUs for cash and/or common shares of AuRico, as applicable (it being understood that such Securities will be voted in accordance with Section 3(a));
(f) not, except as required pursuant to this Agreement, grant or agree to grant any proxy or other right to vote the Subject Securities Securities, or enter into any voting trust or pooling agreement or arrangement Merger or enter into or subject any of the such Subject Securities to any other agreement, arrangementMerger, understanding or commitment, formal or informal, with respect to or relating to the voting or tendering thereof or revoke any proxy granted pursuant to this Agreement;
(g) not exercise any rights thereof, other than in support of dissent or appraisal in respect of any the resolution approving the Proposed Transaction or any aspect thereof or matter Merger and other related thereto, and not exercise any other securityholder rights or remedies available matters to be considered at common law or pursuant to applicable corporate or securities law or other legislation or not take any action that is reasonably likely to in any manner impede, interfere with, delay, postpone, hinder, prevent, or challenge the Proposed TransactionPurchaser Meeting;
(h) not, subject g. not to Section 7, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectly:
(i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, permitting any visit to any facilities or entering into any form of agreement, arrangement or understanding) any inquiries or proposals, whether publicly or otherwise, regarding an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(ii) enter into, engage, continue or participate in any negotiations or discussions regarding, or provide any non-public information with respect to AuRico or any of its subsidiaries, or offer or provide access to the business, properties, assets, books or records of AuRico or any of its subsidiaries or otherwise cooperate in any way with, any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in the requisition of any meeting of the securityholders of AuRico Purchaser Shareholders for the purpose of considering any resolution; or;
(iv) h. not to solicit or arrange or provide assistance to any other person to arrange for the solicitation of, proxies relating to or purchases of or offers to sell common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico Purchaser Shares or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico Purchaser Shares for the purpose of influencing the voting of common shares of AuRico or affecting the control of AuRico, the Purchaser; and
i. not to take any action to encourage or assist any other than, person to do any of the prohibited acts referred to in the case of proxy solicitation, in support of the Proposed Transaction;
(i) promptly notify Alamos upon any of undersigned’s representations or warranties contained in this Agreement becoming untrue or incorrect in any material respect prior to the termination foregoing provisions of this Agreement. The Securityholder acknowledges and agrees that any Options, PSUs, RSUs and DSUs held by him or her, to the extent not exercised or settled, shall be treated in accordance with the Arrangement and he or she shall take all steps required of him or her to give effect to such treatmentSection 1.2.
Appears in 2 contracts
Samples: Merger Agreement (Americas Silver Corp), Support Agreement (Americas Silver Corp)
Covenants of the Securityholder. 1.1 The Securityholder acknowledges and agrees that he, she or it has received a copy of the Merger Agreement and, in particular, has been made aware of the provisions of Article VII of the Merger Agreement
1.2 The Securityholder hereby covenants and agrees thatagrees, from the date hereof until the earlier of: (i) the closing termination of the Proposed Transaction this Support Agreement pursuant to Article 3 hereof; and (ii) the date this Agreement is terminated Effective Date, except in accordance with its terms, the Securityholder shallterms of this Support Agreement:
(a) attend (either in person or by proxy) any AuRico Arrangement Meeting (including any adjournments and postponements thereof), and at the AuRico Arrangement Meeting, to irrevocably vote or cause to be voted at the Target Meeting (including at any adjournment or postponement thereof) the Subject Shares in favour of any resolutions approving the Merger and other related matters or resolutions necessary or desirable to implement the Merger to be considered at the Target Meeting and to deliver a proxy, or to the extent that the Securityholder is a beneficial owner, a voting instruction form, in each case duly completed and executed in respect of all of the Subject Shares, giving effect to such vote no later than 10 business days prior to the Target Meeting;
(b) not to exercise any dissent rights or any other rights available to the Securityholder to delay, upset or challenge the Merger;
(c) not to exercise any shareholder rights or remedies available at common law pursuant to applicable securities or other laws to delay, hinder, upset or challenge the Merger;
(d) not to option, sell, assign, transfer, alienate, dispose of, gift, grant, pledge, create or permit an encumbrance on, grant a security interest in or otherwise convey any Subject Shares or any voting rights attached thereto or any other right or interest therein, or agree to do any of the foregoing, provided that, for the avoidance of doubt: (i) the Shares; Securityholder shall be entitled to exercise any Convertible Securities held by the Securityholder during the term of this Support Agreement, and (ii) any Subject Shares acquired by or issued on exercise of Convertible Securities during the term of this Support Agreement shall be subject to the Securityholder on or following the date hereof (including any common shares terms of AuRico issued upon the exercise, Options, PSUs, RSUs or DSUs); (iii) the Options, PSUs, RSUs or DSUs; and (iv) any Options, PSUs, RSUs or DSUs acquired by or issued to the Securityholder on or following the date hereof, that are beneficially owned by, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted at the AuRico Arrangement Meeting (the “Subject Securities”) in favour of the Proposed Transaction and all matters related thereto;
(b) vote or cause to be voted (in person or by proxy) at any meeting of the securityholders of AuRico any Subject Securities against, or not tender or cause to be tendered any Subject Securities to:
(i) any corporate transaction, such as a merger, amalgamation, arrangement, rights offering, reorganization, recapitalization, or liquidation or take-over bid, sale or transfer of a material amount of assets of AuRico or similar transaction involving AuRico or the common shares of AuRico other than the Proposed Transaction and any transaction related thereto;
(ii) the issuance of any securities of AuRico (other than pursuant to the exercise of Options or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
(iii) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, or adversely affect in any material respect the Proposed Transaction including, without limitation, any AuRico Acquisition Proposal; or
(iv) any action or agreement that would result in a breach of any representation, warranty, or covenant or other obligation of AuRico in the Arrangement this Support Agreement;
(c) upon the request or direction of Alamos, execute a proxy in respect of any resolution referred to in Section 3(b), and have all of its Subject Securities counted or not counted (as directed by Alamos) as part of a quorum in connection with any meeting of securityholders of AuRico relating to matters set forth in Section 3(b);
(d) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolution;
(e) not, without the prior written consent of Alamos, sell, transfer, assign, pledge, encumber or otherwise dispose of, or enter into any agreement or understanding relating not to the sale, transfer, assignment, pledge, encumbrance or other disposition of, the Subject Securities or any interest therein (other than as contemplated herein), provided, however, that nothing contained herein shall prohibit the Securityholder from exercising any Options or settling any PSUs, RSUs or DSUs for cash and/or common shares of AuRico, as applicable (it being understood that such Securities will be voted in accordance with Section 3(a));
(f) not, except as required pursuant to this Agreement, grant or agree to grant any proxy or other right to vote the Subject Securities Shares, or enter into any voting trust or pooling agreement or arrangement Merger or enter into or subject any of the such Subject Securities Shares to any other agreement, arrangementMerger, understanding or commitment, formal or informal, with respect to or relating to the voting or tendering thereof or revoke any proxy granted pursuant thereof, other than in support of the resolution approving the Merger and other related matters to this Agreementbe considered at the Target Meeting;
(gf) not exercise any rights of dissent or appraisal in respect of any resolution approving the Proposed Transaction or any aspect thereof or matter related thereto, and not exercise any other securityholder rights or remedies available at common law or pursuant to applicable corporate or securities law or other legislation or not take any action that is reasonably likely to in any manner impede, interfere with, delay, postpone, hinder, prevent, or challenge the Proposed Transaction;
(h) not, subject to Section 7, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectly:
(i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, permitting any visit to any facilities or entering into any form of agreement, arrangement or understanding) any inquiries or proposals, whether publicly or otherwise, regarding an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(ii) enter into, engage, continue or participate in any negotiations or discussions regarding, or provide any non-public information with respect to AuRico or any of its subsidiaries, or offer or provide access to the business, properties, assets, books or records of AuRico or any of its subsidiaries or otherwise cooperate in any way with, any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in the requisition of any meeting of the securityholders shareholders of AuRico Uranerz for the purpose of considering any resolution; or;
(ivg) not to, in any manner, directly or indirectly, including through any Representative, solicit, initiate, or knowingly encourage any inquiries, proposals, offers or public announcements (or the submission or initiation of any of the foregoing) from any person regarding any Acquisition Proposal, engage in any negotiations concerning, or provide any information to, or have any discussions with or otherwise cooperate with, any person relating to an Acquisition Proposal,
(h) not to solicit or arrange or provide assistance to any other person to arrange for the solicitation of, proxies relating to or purchases of or offers to sell common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico Uranerz Common Shares or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico Uranerz Common Shares for the purpose of influencing the voting of common shares of AuRico or affecting the control of AuRico, other than, in the case of proxy solicitation, in support of the Proposed TransactionUranerz;
(i) not to deposit or cause to be deposited the Securityholder’s Subject Shares under any Acquisition Proposal;
(j) not to take any action of any kind, directly or indirectly, which might reasonably be regarded as likely to reduce the success of, or delay or interfere with the completion of, the transactions contemplated by the Merger Agreement;
(k) to immediately cease, cause its Representatives to cease and cause to be terminated any existing solicitations, discussions or negotiations with any parties (other than with EFI or Uranerz or any Representative of EFI or Uranerz) with respect to any Acquisition Proposal or any potential Acquisition Proposal;
(l) to promptly notify Alamos upon EFI, at first orally and then in writing, of all Acquisition Proposals currently under consideration or of which the Securityholder is aware;
(m) to immediately notify EFI of any proposal, inquiry, offer or request of undersigned’s representations or warranties contained in this Agreement becoming untrue or incorrect in any material respect prior to which the termination of this Agreement. The Securityholder acknowledges and agrees that any Options, PSUs, RSUs and DSUs held by him or herSecurityholder, to the extent knowledge of the Securityholder, any of its directors, officers, employees, representatives or agents becomes, directly or indirectly, aware: relating to an Acquisition Proposal or potential Acquisition Proposal; for discussions or negotiations in respect of an Acquisition Proposal or potential Acquisition Proposal; for non-public information relating to Uranerz; or any material amendments to the foregoing. Such notice shall include the identity of the person making such proposal, inquiry, offer or request, a description of the terms and conditions of, and the identity of the person making, such proposal, inquiry, offer or request and such other details of the proposal, inquiry, offer or request as EFI may reasonably request; and
(n) not exercised to take any action to encourage or settledassist any other person to do any of the prohibited acts referred to in the foregoing provisions of this Section 1.2. or otherwise knowingly facilitate or knowingly encourage any effort or attempt to make or implement an Acquisition Proposal;
1.3 Nothing in this Article 1 shall prevent a Securityholder who is a member of the board of directors of Uranerz or is a senior officer of Uranerz from engaging, in the Securityholder’s capacity as a director or senior officer of Uranerz, in discussions or negotiations with a person in response to an Acquisition Proposal in circumstances where Uranerz is permitted by Section 7.2 of the Merger Agreement to engage in such discussions or negotiations, and provided further that no disclosure or notification is required under clauses 1.2(l) or (m) if the board of directors of Uranerz has determined that disclosure or notification of such Acquisition Proposal, proposal, inquiry, offer or request would not be required by Uranerz under Section 7.2 of the Merger Agreement. For greater certainty, the Securityholder acknowledges that this Section 1.3 shall be treated not affect the Securityholder’s obligation to vote the Subject Shares in favour of the Uranerz Resolution in accordance with the Arrangement terms and he or she shall take all steps required conditions of him or her to give effect to such treatmentthis Support Agreement.
Appears in 1 contract
Samples: Support Agreement (Energy Fuels Inc)
Covenants of the Securityholder. The Securityholder covenants irrevocably and unconditionally covenants, undertakes and agrees that, until the earlier of: (i) the closing termination of the Proposed Transaction and (ii) the date this Agreement is terminated in accordance with its terms, the Securityholder shall:
(a) not, directly or indirectly, solicit, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing or providing copies of, access to, or disclosure of, any information, properties, facilities, books or records of Agnico, Xxxxxxxx or any of their respective Subsidiaries) or take any action to solicit, initiate or knowingly encourage or otherwise facilitate, or otherwise engage or participate in, and immediately cease and cause to be terminated, any negotiations or any discussions regarding any inquiry, proposal, expression of interest or offer that constitutes or could reasonably be expected to constitute or lead to, an Acquisition Proposal in respect of Xxxxxxxx;
(b) attend (either virtually, in person or by proxy) any AuRico meeting (including the Xxxxxxxx Meeting) of the securityholders of Xxxxxxxx convened for the purposes of considering the Arrangement Meeting or to give effect to the Arrangement (including any adjournments and postponements thereof), and at the AuRico Arrangement Meetingsuch meeting, cause its Subject Securities to be counted as present for purposes of establishing quorum and, vote or cause to be voted all of: of the Subject Securities (i) the Shares; (ii) any Shares acquired by or issued which have a right to the Securityholder on or following the date hereof (including any common shares of AuRico issued upon the exercise, Options, PSUs, RSUs or DSUs); (iii) the Options, PSUs, RSUs or DSUs; and (iv) any Options, PSUs, RSUs or DSUs acquired by or issued to the Securityholder on or following the date hereof, that are beneficially owned by, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted vote at the AuRico Arrangement Meeting (the “Subject Securities”such meeting) in favour of the Proposed Transaction approval of the Arrangement (including the Arrangement Resolution) and the transactions contemplated by the Merger Agreement (and any actions reasonably required for the consummation of the transactions contemplated in the Merger Agreement and all matters related thereto);
(bc) attend (virtually, in person or by proxy) any meeting (including the Xxxxxxxx Meeting) of the securityholders of Xxxxxxxx convened for the purposes of considering any Acquisition Proposal and/or any other transaction or matter that could reasonably be expected to delay, prevent, frustrate or interfere with the consummation of the Arrangement or any transaction or matter contemplated by the Merger Agreement (including any adjournments and postponements thereof), and at such meeting, cause its Subject Securities to be counted as present for purposes of establishing quorum and, vote or cause to be voted (in person or by proxy) at any meeting all of the securityholders of AuRico any Subject Securities against(which have a right to vote at such meeting) against any Acquisition Proposal and/or any transaction or matter that could reasonably be expected to delay, prevent, frustrate or interfere with, the completion of the Arrangement or any transaction or matter related to the Arrangement or contemplated by the Merger Agreement;
(d) not tender or cause to be tendered any Subject Securities to:
(i) to any corporate transactionAcquisition Proposal or other transaction or matter other than the Arrangement, such as a merger, amalgamation, arrangement, business combination, rights offering, reorganization, recapitalization, recapitalization or liquidation or take-over bid, sale or transfer of a material amount of assets of AuRico bid or similar transaction involving AuRico Xxxxxxxx or the common shares of AuRico other than the Proposed Transaction and any transaction related thereto;
(ii) the issuance of any securities of AuRico (other than pursuant its Shares that could reasonably be expected to the exercise of Options prevent, delay, frustrate or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
(iii) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, or adversely affect in any material respect the Proposed Transaction including, without limitation, any AuRico Acquisition Proposal; or
(iv) any action or agreement that would result in a breach completion of any representation, warranty, or covenant or other obligation of AuRico in the Arrangement or any transaction or matter related to the Arrangement or contemplated by the Merger Agreement;
(c) upon the request or direction of Alamos, execute a proxy in respect of any resolution referred to in Section 3(b), and have all of its Subject Securities counted or not counted (as directed by Alamos) as part of a quorum in connection with any meeting of securityholders of AuRico relating to matters set forth in Section 3(b);
(d) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolution;
(e) not, without the prior written consent of AlamosAgnico, sell, transfer, assign, pledge, encumber hypothecate, encumber, grant a security interest in, gift or otherwise dispose ofof any Subject Securities, or enter into any agreement agreement, arrangement or understanding relating in connection with any of the foregoing (whether by actual disposition or effective economic disposition due to cash settlement or otherwise), other than (i) pursuant to the sale, transfer, assignment, pledge, encumbrance or other disposition of, the Subject Securities Arrangement or any interest therein (other than as transactions contemplated herein)by the Merger Agreement, provided, however, that nothing contained herein shall prohibit or permit any Affiliate of the Securityholder from exercising to do any Options of the foregoing, and (ii) with respect to the sale of a portion of any Shares issued upon vesting and exercise or settling settlement of the Options, PSUs and RSUs held by the Securityholder that vest prior to the completion of the Arrangement solely in order to satisfy any PSUs, RSUs or DSUs for cash and/or common shares of AuRico, as applicable (it being understood tax liabilities that such Securities will be voted arise in accordance with Section 3(a))connection therewith;
(f) not, except as required pursuant to this Agreement, grant or agree to grant any proxy proxy, power of attorney or other right to vote the Subject Securities, or deposit any of the Subject Securities or enter into any voting trust or enter into any vote pooling agreement or voting arrangement or enter into or subject any of the such Subject Securities to any other agreement, arrangement, understanding or commitmentcommitme nt, formal or informal, with respect to or relating to the voting , calling of meetings of Xxxxxxxx Shareholders, the tendering thereof, or tendering thereof the granting of consents or revoke approvals of any proxy granted pursuant kind with respect to this Agreementany Subject Securities;
(g) not exercise any rights of dissent or appraisal in respect of any resolution approving the Proposed Transaction Arrangement (including the Arrangement Resolution) or any aspect thereof or matter related theretoto the transactions contemplated by the Merger Agreement, and not exercise any other securityholder rights or remedies or bring or threaten to bring any suit or proceeding available at common law or pursuant to applicable securities, corporate or securities law or other legislation Law or not take any action that is reasonably likely to in any manner impede, interfere with, delay, postpone, hinder, prevent, frustrate, interfere with or challenge the Proposed TransactionArrangement or any transaction contemplated by the Merger Agreement;
(h) not, subject to Section 7without the prior written consent of Agnico, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectly:
(i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, permitting any visit to any facilities or entering into any form of agreement, arrangement or understanding) any inquiries or proposals, whether publicly or otherwise, regarding an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(ii) enter into, engage, continue or participate in any negotiations or discussions regarding, or provide any non-public information with respect to AuRico or any of its subsidiaries, or offer or provide access to the business, properties, assets, books or records of AuRico or any of its subsidiaries or otherwise cooperate in any way with, any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in the requisition of any meeting of any of the securityholders of AuRico Xxxxxxxx Shareholders for the purpose of considering any resolution; or
(iv) solicit resolution which may reasonably be expected to prevent, delay, frustrate or arrange or provide assistance to any other person to arrange for interfere with, the solicitation of, proxies relating to or purchases of or offers to sell common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico for the purpose of influencing the voting of common shares of AuRico or affecting the control of AuRico, other than, in the case of proxy solicitation, in support completion of the Proposed TransactionArrangement or any transaction or matter related to the Arrangement or contemplated by the Merger Agreement;
(i) promptly notify Alamos upon not make any public statement or take any other action of any kind which may reasonably be expected to prevent, delay, frustrate or interferewith, the completion of the Arrangement or any transaction or matter related to the Arrangement or contemplated by the Merger Agreement;
(j) in the event that Agnico (or any of undersigned’s representations or warranties contained in this Agreement becoming untrue or incorrect in any material respect prior its Affiliates) undertakes an alternative transaction to the termination Arrangement (whether in form or substance) involving Xxxxxxxx that results in holders of Shares receiving consideration that is no less favourable than the consideration offered pursuant to the Arrangement, reasonably cooperate to facilitate the objectives of Agnico and Xxxxxxxx in respect of such alternative transaction; and
(k) not do indirectly that which it may not do directly in respect of the restrictions on its rights with respect to the Securityholder’s Subject Securities pursuant to this Agreement. The Securityholder acknowledges and agrees that any Options, PSUs, RSUs and DSUs held by him or her, to the extent not exercised or settled, shall be treated in accordance with the Arrangement and he or she shall take all steps required of him or her to give effect to such treatment.
Appears in 1 contract
Samples: Support and Voting Agreement
Covenants of the Securityholder. The Securityholder covenants irrevocably and unconditionally covenants, undertakes and agrees that, until the earlier of: (i) the closing termination of the Proposed Transaction and (ii) the date this Agreement is terminated in accordance with its terms, the Securityholder shall:
(a) not, directly or indirectly, solicit, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing or providing copies of, access to, or disclosure of, any information, properties, facilities, books or records of Agnico, Xxxxxxxx or any of their respective Subsidiaries) or take any action to solicit, initiate or knowingly encourage or otherwise facilitate, or otherwise engage or participate in, and immediately cease and cause to be terminated, any negotiations or any discussions regarding any inquiry, proposal, expression of interest or offer that constitutes or could reasonably be expected to constitute or lead to, an Acquisition Proposal in respect of Agnico;
(b) attend (either virtually, in person or by proxy) any AuRico meeting (including the Agnico Meeting) of the securityholders of Agnico convened for the purposes of considering the Agnico Resolution or to give effect to the Arrangement Meeting (including any adjournments and postponements thereof), and at the AuRico Arrangement Meetingsuch meeting, cause its Subject Securities to be counted as present for purposes of establishing quorum and, vote or cause to be voted all of: of the Subject Securities (i) the Shares; (ii) any Shares acquired by or issued which have a right to the Securityholder on or following the date hereof (including any common shares of AuRico issued upon the exercise, Options, PSUs, RSUs or DSUs); (iii) the Options, PSUs, RSUs or DSUs; and (iv) any Options, PSUs, RSUs or DSUs acquired by or issued to the Securityholder on or following the date hereof, that are beneficially owned by, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted vote at the AuRico Arrangement Meeting (the “Subject Securities”such meeting) in favour of the Proposed Transaction approval of the Agnico Resolution and the transactions contemplated by the Merger Agreement (and any actions reasonably required for the consummation of the transactions contemplated in the Merger Agreement and all matters related thereto);
(bc) attend (virtually, in person or by proxy) any meeting (including the Agnico Meeting) of the securityholders of Agnico convened for the purposes of considering any Acquisition Proposal and/or any other transaction or matter that could reasonably be expected to delay, prevent, frustrate or interfere with the consummation of the Arrangement or any transaction or matter contemplated by the Merger Agreement (including any adjournments and postponements thereof), and at such meeting, cause its Subject Securities to be counted as present for purposes of establishing quorum and, vote or cause to be voted (in person or by proxy) at any meeting all of the securityholders of AuRico any Subject Securities against(which have a right to vote at such meeting) against any Acquisition Proposal and/or any transaction or matter that could reasonably be expected to delay, prevent, frustrate or interfere with, the completion of the Arrangement or any transaction or matter related to the Arrangement or contemplated by the Merger Agreement;
(d) not tender or cause to be tendered any Subject Securities to:
(i) to any corporate transactionAcquisition Proposal or other transaction or matter other than the Arrangement, such as a merger, amalgamation, arrangement, business combination, rights offering, reorganization, recapitalization, recapitalization or liquidation or take-over bid, sale or transfer of a material amount of assets of AuRico bid or similar transaction involving AuRico Agnico or the common shares of AuRico other than the Proposed Transaction and any transaction related thereto;
(ii) the issuance of any securities of AuRico (other than pursuant its Shares that could reasonably be expected to the exercise of Options prevent, delay, frustrate or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
(iii) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, or adversely affect in any material respect the Proposed Transaction including, without limitation, any AuRico Acquisition Proposal; or
(iv) any action or agreement that would result in a breach completion of any representation, warranty, or covenant or other obligation of AuRico in the Arrangement or any transaction or matter related to the Arrangement or contemplated by the Merger Agreement;
(c) upon the request or direction of Alamos, execute a proxy in respect of any resolution referred to in Section 3(b), and have all of its Subject Securities counted or not counted (as directed by Alamos) as part of a quorum in connection with any meeting of securityholders of AuRico relating to matters set forth in Section 3(b);
(d) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolution;
(e) not, without the prior written consent of AlamosXxxxxxxx, sell, transfer, assign, pledge, encumber hypothecate, encumber, grant a security interest in, gift or otherwise dispose ofof any Subject Securities, or enter into any agreement agreement, arrangement or understanding relating in connection with any of the foregoing (whether by actual disposition or effective economic disposition due to cash settlement or otherwise), other than (i) pursuant to the sale, transfer, assignment, pledge, encumbrance or other disposition of, the Subject Securities Arrangement or any interest therein (other than as transactions contemplated herein)by the Merger Agreement, provided, however, that nothing contained herein shall prohibit or permit any Affiliate of the Securityholder from exercising to do any Options of the foregoing, and (ii) with respect to the sale of a portion of any Shares issued upon vesting and exercise or settling settlement of the Options, PSUs and RSUs held by the Securityholder that vest prior to the completion of the Arrangement solely in order to satisfy any PSUs, RSUs or DSUs for cash and/or common shares of AuRico, as applicable (it being understood tax liabilities that such Securities will be voted arise in accordance with Section 3(a))connection therewith;
(f) not, except as required pursuant to this Agreement, grant or agree to grant any proxy proxy, power of attorney or other right to vote the Subject Securities, or deposit any of the Subject Securities or enter into any voting trust or enter into any vote pooling agreement or voting arrangement or enter into or subject any of the such Subject Securities to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting voting, calling of meetings of Agnico Shareholders, the tendering thereof, or tendering thereof the granting of consents or revoke approvals of any proxy granted pursuant kind with respect to this Agreementany Subject Securities;
(g) not exercise any rights of dissent or appraisal in respect of any resolution approving the Proposed Transaction Agnico Resolution or any aspect thereof or matter related theretoto the transactions contemplated by the Merger Agreement, and not exercise any other securityholder rights or remedies or bring or threaten to bring any suit or proceeding available at common law or pursuant to applicable securities, corporate or securities law or other legislation Law or not take any action that is reasonably likely to in any manner impede, interfere with, delay, postpone, hinder, prevent, frustrate, interfere with or challenge the Proposed TransactionArrangement or any transaction contemplated by the Merger Agreement;
(h) not, subject to Section 7without the prior written consent of Xxxxxxxx, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectly:
(i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, permitting any visit to any facilities or entering into any form of agreement, arrangement or understanding) any inquiries or proposals, whether publicly or otherwise, regarding an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(ii) enter into, engage, continue or participate in any negotiations or discussions regarding, or provide any non-public information with respect to AuRico or any of its subsidiaries, or offer or provide access to the business, properties, assets, books or records of AuRico or any of its subsidiaries or otherwise cooperate in any way with, any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in the requisition of any meeting of any of the securityholders of AuRico Agnico Shareholders for the purpose of considering any resolution; or
(iv) solicit resolution which may reasonably be expected to prevent, delay, frustrate or arrange or provide assistance to any other person to arrange for interfere with, the solicitation of, proxies relating to or purchases of or offers to sell common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico for the purpose of influencing the voting of common shares of AuRico or affecting the control of AuRico, other than, in the case of proxy solicitation, in support completion of the Proposed TransactionArrangement or any transaction or matter related to the Arrangement or contemplated by the Merger Agreement;
(i) promptly notify Alamos upon not make any public statement or take any other action of undersigned’s representations any kind which may reasonably be expected to prevent, delay, frustrate or warranties contained in this Agreement becoming untrue interfere with, the completion of the Arrangement or incorrect in any material respect prior transaction or matter related to the termination Arrangement or contemplated by the Merger Agreement; and
(j) not do indirectly that which it may not do directly in respect of the restrictions on its rights with respect to the Securityholder's Subject Securities pursuant to this Agreement. The Securityholder acknowledges and agrees that any Options, PSUs, RSUs and DSUs held by him or her, to the extent not exercised or settled, shall be treated in accordance with the Arrangement and he or she shall take all steps required of him or her to give effect to such treatment.
Appears in 1 contract
Samples: Support and Voting Agreement (Kirkland Lake Gold Ltd.)
Covenants of the Securityholder. 1.1 The Securityholder acknowledges and agrees that he, she or it has received a copy of the Merger Agreement and, in particular, has been made aware of the provisions of Article VII of the Merger Agreement
1.2 The Securityholder hereby covenants and agrees thatagrees, from the date hereof until the earlier of: (i) the closing termination of the Proposed Transaction this Support Agreement pursuant to Article 3 hereof; and (ii) the date this Agreement is terminated Effective Date, except in accordance with its terms, the Securityholder shallterms of this Support Agreement:
(a) attend (either in person or by proxy) any AuRico Arrangement Meeting (including any adjournments and postponements thereof), and at the AuRico Arrangement Meeting, to irrevocably vote or cause to be voted at the Target Meeting (includin g at any adjournment or postponement thereof) the Subject Shares in favour of any resolutions approving the Merger and other related matters or resolutions necessary or desirable to implement the Merger to be considered at the Target Meeting and to deliver a proxy, or to the extent that the Securityholder is a beneficial owner, a voting instruction form, in each case duly completed and executed in respect of all of the Subject Shares, giving effect to such vote no later than 10 business days prior to the Target Meeting;
(b) not to exercise any dissent rights or any other rights available to the Securityholder to delay, upset or challenge the Merger;
(c) not to exercise any shareholder rights or remedies available at common law pursuant to applicable securities or other laws to delay, hinder, upset or challenge the Merger;
(d) not to option, sell, assign, transfer, alienate, dispose of, gift, grant, pledge, create or permit an encumbrance on, grant a security interest in or otherwise convey any Subject Shares or any voting rights attached thereto or any other right or interest therein, or agree to do any of the foregoing, provided that, for the avoidance of doubt: (i) the Shares; Securityholder shall be entitled to exercise any Convertible Securities held by the Securityholder during the term of this Support Agreement, and (ii) any Subject Shares acquired by or issued on exercise of Convertible Securities during the term of this Support Agreement shall be subject to the Securityholder on or following the date hereof (including any common shares terms of AuRico issued upon the exercise, Options, PSUs, RSUs or DSUs); (iii) the Options, PSUs, RSUs or DSUs; and (iv) any Options, PSUs, RSUs or DSUs acquired by or issued to the Securityholder on or following the date hereof, that are beneficially owned by, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted at the AuRico Arrangement Meeting (the “Subject Securities”) in favour of the Proposed Transaction and all matters related thereto;
(b) vote or cause to be voted (in person or by proxy) at any meeting of the securityholders of AuRico any Subject Securities against, or not tender or cause to be tendered any Subject Securities to:
(i) any corporate transaction, such as a merger, amalgamation, arrangement, rights offering, reorganization, recapitalization, or liquidation or take-over bid, sale or transfer of a material amount of assets of AuRico or similar transaction involving AuRico or the common shares of AuRico other than the Proposed Transaction and any transaction related thereto;
(ii) the issuance of any securities of AuRico (other than pursuant to the exercise of Options or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
(iii) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, or adversely affect in any material respect the Proposed Transaction including, without limitation, any AuRico Acquisition Proposal; or
(iv) any action or agreement that would result in a breach of any representation, warranty, or covenant or other obligation of AuRico in the Arrangement this Support Agreement;
(c) upon the request or direction of Alamos, execute a proxy in respect of any resolution referred to in Section 3(b), and have all of its Subject Securities counted or not counted (as directed by Alamos) as part of a quorum in connection with any meeting of securityholders of AuRico relating to matters set forth in Section 3(b);
(d) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolution;
(e) not, without the prior written consent of Alamos, sell, transfer, assign, pledge, encumber or otherwise dispose of, or enter into any agreement or understanding relating not to the sale, transfer, assignment, pledge, encumbrance or other disposition of, the Subject Securities or any interest therein (other than as contemplated herein), provided, however, that nothing contained herein shall prohibit the Securityholder from exercising any Options or settling any PSUs, RSUs or DSUs for cash and/or common shares of AuRico, as applicable (it being understood that such Securities will be voted in accordance with Section 3(a));
(f) not, except as required pursuant to this Agreement, grant or agree to grant any proxy or other right to vote the Subject Securities Shares, or enter into any voting trust or pooling agreement or arrangement Merger or enter into or subject any of the such Subject Securities Shares to any other agreement, arrangementMerger, understanding or commitment, formal or informal, with respect to or relating to the voting or tendering thereof or revoke any proxy granted pursuant thereof, other than in support of the resolution approving the Merger and other related matters to this Agreementbe considered at the Target Meeting;
(gf) not exercise any rights of dissent or appraisal in respect of any resolution approving the Proposed Transaction or any aspect thereof or matter related thereto, and not exercise any other securityholder rights or remedies available at common law or pursuant to applicable corporate or securities law or other legislation or not take any action that is reasonably likely to in any manner impede, interfere with, delay, postpone, hinder, prevent, or challenge the Proposed Transaction;
(h) not, subject to Section 7, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectly:
(i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, permitting any visit to any facilities or entering into any form of agreement, arrangement or understanding) any inquiries or proposals, whether publicly or otherwise, regarding an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(ii) enter into, engage, continue or participate in any negotiations or discussions regarding, or provide any non-public information with respect to AuRico or any of its subsidiaries, or offer or provide access to the business, properties, assets, books or records of AuRico or any of its subsidiaries or otherwise cooperate in any way with, any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in the requisition of any meeting of the securityholders shareholders of AuRico Uranerz for the purpose of considering any resolution; or;
(ivg) not to, in any manner, directly or indirectly, including through any Representative, solicit, initiate, or knowingly encourage any inquiries, proposals, offers or public announcements (or the submission or initiation of any of the foregoing) from any person regarding any Acquisition Proposal, engage in any negotiations concerning, or provide any information to, or have any discussions with or otherwise cooperate with, any person relating to an Acquisition Proposal, or otherwise knowingly facilitate or knowingly encourage any effort or attempt to make or implement an Acquisition Proposal;
(h) not to solicit or arrange or provide assistance to any other person to arrange for the solicitation of, proxies relating to or purchases of or offers to sell common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico Uranerz Common Shares or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico Uranerz Common Shares for the purpose of influencing the voting of common shares of AuRico or affecting the control of AuRico, other than, in the case of proxy solicitation, in support of the Proposed TransactionUranerz;
(i) not to deposit or cause to be deposited the Securityholder’s Subject Shares under any Acquisition Proposal;
(j) not to take any action of any kind, directly or indirectly, which might reasonably be regarded as likely to reduce the success of, or delay or interfere with the completion of, the transactions contemplated by the Merger Agreement;
(k) to immediately cease, cause its Representatives to cease and cause to be terminated any existing solicitations, discussions or negotiations with any parties (other than with EFI or Uranerz or any Representative of EFI or Uranerz) with respect to any Acquisition Proposal or any potential Acquisition Proposal;
(l) to promptly notify Alamos upon EFI, at first orally and then in writing, of all Acquisition Proposals currently under consideration or of which the Securityholder is aware;
(m) to immediately notify EFI of any proposal, inquiry, offer or request of undersigned’s representations or warranties contained in this Agreement becoming untrue or incorrect in any material respect prior to which the termination of this Agreement. The Securityholder acknowledges and agrees that any Options, PSUs, RSUs and DSUs held by him or herSecurityholder, to the extent knowledge of the Securityholder, any of its directors, officers, employees, representatives or agents becomes, directly or indirectly, aware: relating to an Acquisition Proposal or potential Acquisition Proposal; for discussions or negotiations in respect of an Acquisition Proposal or potential Acquisition Proposal; for non-public information relating to Uranerz; or any material amendments to the foregoing. Such notice shall include the identity of the person making such proposal, inquiry, offer or request, a description of the terms and conditions of, and the identity of the person making, such proposal, inquiry, offer or request and such other details of the proposal, inquiry, offer or request as EFI may reasonably request; and
(n) not exercised to take any action to encourage or settledassist any other person to do any of the prohibited acts referred to in the foregoing provisions of this Section 1.2.
1.3 Nothing in this Article 1 shall prevent a Securityholder who is a member of the board of directors of Uranerz or is a senior officer of Uranerz from engaging, in the Securityholder’s capacity as a director or senior officer of Uranerz, in discussions or negotiations with a person in response to an Acquisition Proposal in circumstances where Uranerz is permitted by Section 7.2 of the Merger Agreement to engage in such discussions or negotiations, and provided further that no disclosure or notification is required under clauses 1.2(l) or (m) if the board of directors of Uranerz has determined that disclosure or notification of such Acquisition Proposal, proposal, inquiry, offer or request would not be required by Uranerz under Section 7.2 of the Merger Agreement. For greater certainty, the Securityholder acknowledges that this Section 1.3 shall be treated not affect the Securityholder’s obligation to vote the Subject Shares in favour of the Uranerz Resolution in accordance with the Arrangement terms and he or she shall take all steps required conditions of him or her to give effect to such treatmentthis Support Agreement.
Appears in 1 contract
Samples: Support Agreement (Energy Fuels Inc)
Covenants of the Securityholder. The Securityholder covenants irrevocably and unconditionally covenants, undertakes and agrees that, until the earlier of: (i) the closing termination of the Proposed Transaction and (ii) the date this Agreement is terminated in accordance with its terms, the Securityholder shall:
(a) not, directly or indirectly, solicit, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing or providing copies of, access to, or disclosure of, any information, properties, facilities, books or records of Agnico, Xxxxxxxx or any of their respective Subsidiaries) or take any action to solicit, initiate or knowingly encourage or otherwise facilitate, or otherwise engage or participate in, and immediately cease and cause to be terminated, any negotiations or any discussions regarding any inquiry, proposal, expression of interest or offer that constitutes or could reasonably be expected to constitute or lead to, an Acquisition Proposal in respect of Xxxxxxxx;
(b) attend (either virtually, in person or by proxy) any AuRico meeting (including the Xxxxxxxx Meeting) of the securityholders of Xxxxxxxx convened for the purposes of considering the Arrangement Meeting or to give effect to the Arrangement (including any adjournments and postponements thereof), and at the AuRico Arrangement Meetingsuch meeting, cause its Subject Securities to be counted as present for purposes of establishing quorum and, vote or cause to be voted all of: of the Subject Securities (i) the Shares; (ii) any Shares acquired by or issued which have a right to the Securityholder on or following the date hereof (including any common shares of AuRico issued upon the exercise, Options, PSUs, RSUs or DSUs); (iii) the Options, PSUs, RSUs or DSUs; and (iv) any Options, PSUs, RSUs or DSUs acquired by or issued to the Securityholder on or following the date hereof, that are beneficially owned by, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted vote at the AuRico Arrangement Meeting (the “Subject Securities”such meeting) in favour of the Proposed Transaction approval of the Arrangement (including the Arrangement Resolution) and the transactions contemplated by the Merger Agreement (and any actions reasonably required for the consummation of the transactions contemplated in the Merger Agreement and all matters related thereto);
(bc) attend (virtually, in person or by proxy) any meeting (including the Xxxxxxxx Meeting) of the securityholders of Xxxxxxxx convened for the purposes of considering any Acquisition Proposal and/or any other transaction or matter that could reasonably be expected to delay, prevent, frustrate or interfere with the consummation of the Arrangement or any transaction or matter contemplated by the Merger Agreement (including any adjournments and postponements thereof), and at such meeting, cause its Subject Securities to be counted as present for purposes of establishing quorum and, vote or cause to be voted (in person or by proxy) at any meeting all of the securityholders of AuRico any Subject Securities against(which have a right to vote at such meeting) against any Acquisition Proposal and/or any transaction or matter that could reasonably be expected to delay, prevent, frustrate or interfere with, the completion of the Arrangement or any transaction or matter related to the Arrangement or contemplated by the Merger Agreement;
(d) not tender or cause to be tendered any Subject Securities to:
(i) to any corporate transactionAcquisition Proposal or other transaction or matter other than the Arrangement, such as a merger, amalgamation, arrangement, business combination, rights offering, reorganization, recapitalization, recapitalization or liquidation or take-over bid, sale or transfer of a material amount of assets of AuRico bid or similar transaction involving AuRico Xxxxxxxx or the common shares of AuRico other than the Proposed Transaction and any transaction related thereto;
(ii) the issuance of any securities of AuRico (other than pursuant its Shares that could reasonably be expected to the exercise of Options prevent, delay, frustrate or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
(iii) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, or adversely affect in any material respect the Proposed Transaction including, without limitation, any AuRico Acquisition Proposal; or
(iv) any action or agreement that would result in a breach completion of any representation, warranty, or covenant or other obligation of AuRico in the Arrangement or any transaction or matter related to the Arrangement or contemplated by the Merger Agreement;
(c) upon the request or direction of Alamos, execute a proxy in respect of any resolution referred to in Section 3(b), and have all of its Subject Securities counted or not counted (as directed by Alamos) as part of a quorum in connection with any meeting of securityholders of AuRico relating to matters set forth in Section 3(b);
(d) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolution;
(e) not, without the prior written consent of AlamosAgnico, sell, transfer, assign, pledge, encumber hypothecate, encumber, grant a security interest in, gift or otherwise dispose ofof any Subject Securities, or enter into any agreement agreement, arrangement or understanding relating in connection with any of the foregoing (whether by actual disposition or effective economic disposition due to cash settlement or otherwise), other than (i) pursuant to the sale, transfer, assignment, pledge, encumbrance or other disposition of, the Subject Securities Arrangement or any interest therein (other than as transactions contemplated herein)by the Merger Agreement, provided, however, that nothing contained herein shall prohibit or permit any Affiliate of the Securityholder from exercising to do any Options of the foregoing, and (ii) with respect to the sale of a portion of any Shares issued upon vesting and exercise or settling settlement of the Options, PSUs and RSUs held by the Securityholder that vest prior to the completion of the Arrangement solely in order to satisfy any PSUs, RSUs or DSUs for cash and/or common shares of AuRico, as applicable (it being understood tax liabilities that such Securities will be voted arise in accordance with Section 3(a))connection therewith;
(f) not, except as required pursuant to this Agreement, grant or agree to grant any proxy proxy, power of attorney or other right to vote the Subject Securities, or deposit any of the Subject Securities or enter into any voting trust or enter into any vote pooling agreement or voting arrangement or enter into or subject any of the such Subject Securities to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting voting, calling of meetings of Xxxxxxxx Shareholders, the tendering thereof, or tendering thereof the granting of consents or revoke approvals of any proxy granted pursuant kind with respect to this Agreementany Subject Securities;
(g) not exercise any rights of dissent or appraisal in respect of any resolution approving the Proposed Transaction Arrangement (including the Arrangement Resolution) or any aspect thereof or matter related theretoto the transactions contemplated by the Merger Agreement, and not exercise any other securityholder rights or remedies or bring or threaten to bring any suit or proceeding available at common law or pursuant to applicable securities, corporate or securities law or other legislation Law or not take any action that is reasonably likely to in any manner impede, interfere with, delay, postpone, hinder, prevent, frustrate, interfere with or challenge the Proposed TransactionArrangement or any transaction contemplated by the Merger Agreement;
(h) not, subject to Section 7without the prior written consent of Agnico, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectly:
(i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, permitting any visit to any facilities or entering into any form of agreement, arrangement or understanding) any inquiries or proposals, whether publicly or otherwise, regarding an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(ii) enter into, engage, continue or participate in any negotiations or discussions regarding, or provide any non-public information with respect to AuRico or any of its subsidiaries, or offer or provide access to the business, properties, assets, books or records of AuRico or any of its subsidiaries or otherwise cooperate in any way with, any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in the requisition of any meeting of any of the securityholders of AuRico Xxxxxxxx Shareholders for the purpose of considering any resolution; or
(iv) solicit resolution which may reasonably be expected to prevent, delay, frustrate or arrange or provide assistance to any other person to arrange for interfere with, the solicitation of, proxies relating to or purchases of or offers to sell common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico for the purpose of influencing the voting of common shares of AuRico or affecting the control of AuRico, other than, in the case of proxy solicitation, in support completion of the Proposed TransactionArrangement or any transaction or matter related to the Arrangement or contemplated by the Merger Agreement;
(i) promptly notify Alamos upon not make any public statement or take any other action of any kind which may reasonably be expected to prevent, delay, frustrate or interfere with, the completion of the Arrangement or any transaction or matter related to the Arrangement or contemplated by the Merger Agreement;
(j) in the event that Agnico (or any of undersigned’s representations or warranties contained in this Agreement becoming untrue or incorrect in any material respect prior its Affiliates) undertakes an alternative transaction to the termination Arrangement (whether in form or substance) involving Xxxxxxxx that results in holders of Shares receiving consideration that is no less favourable than the consideration offered pursuant to the Arrangement, reasonably cooperate to facilitate the objectives of Agnico and Xxxxxxxx in respect of such alternative transaction; and
(k) not do indirectly that which it may not do directly in respect of the restrictions on its rights with respect to the Securityholder's Subject Securities pursuant to this Agreement. The Securityholder acknowledges and agrees that any Options, PSUs, RSUs and DSUs held by him or her, to the extent not exercised or settled, shall be treated in accordance with the Arrangement and he or she shall take all steps required of him or her to give effect to such treatment.
Appears in 1 contract
Samples: Support and Voting Agreement (Kirkland Lake Gold Ltd.)
Covenants of the Securityholder. The Securityholder covenants and agrees that, until the earlier of: (i) the closing of the Proposed Transaction and (ii) the date this Agreement is terminated in accordance with its terms, the Securityholder shall:
(a) attend (either in person or by proxy) any AuRico Arrangement Richmont Meeting (including any adjournments and postponements thereof), and at the AuRico Arrangement Richmont Meeting, vote or cause to be voted all of: (i) the Shares; (ii) any Shares acquired by or issued to the Securityholder on or following the date hereof (including any common shares of AuRico Richmont issued upon the exercise, exercise of Options, PSUs, RSUs or DSUs); (iii) the Options, PSUs, RSUs or DSUs; and (iv) any Options, PSUs, RSUs or DSUs acquired by or issued to the 36566-2054 24046116.3 Securityholder on or following the date hereof, that are beneficially owned by, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted at the AuRico Arrangement Richmont Meeting (the “Subject Securities”) in favour of the Proposed Transaction and all matters related thereto;
(b) vote or cause to be voted (in person or by proxy) at any meeting of the securityholders of AuRico Richmont any Subject Securities against, or not tender or cause to be tendered any Subject Securities to:
(i) any corporate transaction, such as a merger, amalgamation, arrangement, rights offering, reorganization, recapitalization, or liquidation or liquidation, take-over bid, sale or transfer of a material amount of assets of AuRico Richmont or similar transaction involving AuRico Richmont or the common shares of AuRico Richmont other than the Proposed Transaction and any transaction related thereto;
(ii) the issuance of any securities of AuRico Richmont (other than pursuant to the exercise of Options or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
(iii) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, or adversely affect in any material respect the Proposed Transaction including, without limitation, any AuRico Acquisition Proposal; or
(iv) any action or agreement that would result in a breach of any representation, warranty, or covenant or other obligation of AuRico Richmont in the Arrangement Agreement;
(c) upon the request or direction of Alamos, execute a proxy in respect of any resolution referred to in Section 3(b), and have all of its Subject Securities counted or not counted (as directed by Alamos) as part of a quorum in connection with any meeting of securityholders of AuRico Richmont relating to matters set forth in Section 3(b);
(d) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolution;
(e) not, without the prior written consent of Alamos, sell, transfer, assign, pledge, encumber or otherwise dispose of, or enter into any agreement or understanding relating to the sale, transfer, assignment, pledge, encumbrance or other disposition of, the Subject Securities or any interest therein (other than as contemplated herein), provided, however, that nothing contained herein shall prohibit the Securityholder from exercising any Options or settling any PSUs, RSUs or DSUs for cash and/or common shares of AuRicoRichmont, as applicable (it being understood that such Subject Securities will be voted in accordance with Section 3(a));; 36566-2054 24046116.3
(f) not, except as required pursuant to this Agreement, grant or agree to grant any proxy or other right to vote the Subject Securities or enter into any voting trust or pooling agreement or arrangement in respect of the Subject Securities or enter into or subject any of the Subject Securities to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting or tendering thereof or revoke any proxy granted pursuant to this Agreement;
(g) not exercise any rights of dissent or appraisal in respect of any resolution approving the Proposed Transaction or any aspect thereof or matter related thereto, and not exercise any other securityholder rights or remedies available at common law or pursuant to applicable corporate or securities law or other legislation or not take any action that is reasonably likely to in any manner impede, interfere with, delay, postpone, hinder, prevent, or challenge the Proposed Transaction;
(h) not, subject to Section 7, not, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectly:
(i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, knowingly permitting any visit to facilities or properties of Richmont or any facilities of its Subsidiaries or entering into any form of agreement, arrangement or understanding) any inquiries inquiry, proposal, expression of interest or proposals, whether publicly offer that constitutes or otherwise, regarding that may reasonably be expected to lead an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(ii) enter intoparticipate, engagedirectly or indirectly, continue or participate in any discussions or negotiations or discussions regardingregarding any inquiry, or provide any non-public information with respect to AuRico or any proposal, expression of its subsidiaries, interest or offer that constitutes or provide access that may reasonably be expected to lead to an Acquisition Proposal (provided that, if the businessSecurityholder is a director or officer of Richmont, propertiesthe Securityholder may, assetsin such capacity, books or records advise any person making an unsolicited Acquisition Proposal that such Acquisition Proposal does not constitute a Richmont Superior Proposal if the Richmont Board has so determined in compliance with Article 6 of AuRico or any of its subsidiaries the Arrangement Agreement) or otherwise cooperate in with or assist any way with, effort or attempt to make any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in the requisition of any meeting of the securityholders of AuRico Richmont for the purpose of considering any resolution; or
(iv) solicit or arrange (or provide assistance to any other person to arrange arrange) for the solicitation of, of proxies relating to to, or purchases of or offers to sell sell, common shares of AuRico Richmont or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico Richmont, or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico Richmont or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico Richmont for the purpose of influencing the voting of common shares of AuRico Richmont or 36566-2054 24046116.3 affecting the control of AuRicoRichmont, other than, in the case of proxy solicitation, in support of the Proposed Transaction;; and
(i) promptly notify Alamos upon any of undersigned’s representations or warranties contained in this Agreement becoming untrue or incorrect in any material respect prior to the termination of this Agreement. The Securityholder acknowledges and agrees that any Options, PSUs, RSUs and DSUs held by him or her, to the extent not exercised or settled, shall be treated in accordance with the Arrangement and he or she shall take all steps required of him or her to give effect to such treatment.
Appears in 1 contract
Covenants of the Securityholder. The Securityholder covenants irrevocably and unconditionally covenants, undertakes and agrees that, until the earlier of: (i) the closing termination of the Proposed Transaction and (ii) the date this Agreement is terminated in accordance with its terms, the Securityholder shall:
(a) not, directly or indirectly, solicit, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing or providing copies of, access to, or disclosure of, any information, properties, facilities, books or records of Agnico, Xxxxxxxx or any of their respective Subsidiaries) or take any action to solicit, initiate or knowingly encourage or otherwise facilitate, or otherwise engage or participate in, and immediately cease and cause to be terminated, any negotiations or any discussions regarding any inquiry, proposal, expression of interest or offer that constitutes or could reasonably be expected to constitute or lead to, an Acquisition Proposal in respect of Agnico;
(b) attend (either virtually, in person or by proxy) any AuRico meeting (including the Agnico Meeting) of the securityholders of Agnico convened for the purposes of considering the Agnico Resolution or to give effect to the Arrangement Meeting (including any adjournments and postponements thereof), and at the AuRico Arrangement Meetingsuch meeting, cause its Subject Securities to be counted as present for purposes of establishing quorum and, vote or cause to be voted all of: of the Subject Securities (i) the Shares; (ii) any Shares acquired by or issued which have a right to the Securityholder on or following the date hereof (including any common shares of AuRico issued upon the exercise, Options, PSUs, RSUs or DSUs); (iii) the Options, PSUs, RSUs or DSUs; and (iv) any Options, PSUs, RSUs or DSUs acquired by or issued to the Securityholder on or following the date hereof, that are beneficially owned by, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted vote at the AuRico Arrangement Meeting (the “Subject Securities”such meeting) in favour of the Proposed Transaction approval of the Agnico Resolution and the transactions contemplated by the Merger Agreement (and any actions reasonably required for the consummation of the transactions contemplated in the Merger Agreement and all matters related thereto);
(bc) attend (virtually, in person or by proxy) any meeting (including the Agnico Meeting) of the securityholders of Agnico convened for the purposes of considering any Acquisition Proposal and/or any other transaction or matter that could reasonably be expected to delay, prevent, frustrate or interfere with the consummation of the Arrangement or any transaction or matter contemplated by the Merger Agreement (including any adjournments and postponements thereof), and at such meeting, cause its Subject Securities to be counted as present for purposes of establishing quorum and, vote or cause to be voted (in person or by proxy) at any meeting all of the securityholders of AuRico any Subject Securities against(which have a right to vote at such meeting) against any Acquisition Proposal and/or any transaction or matter that could reasonably be expected to delay, prevent, frustrate or interfere with, the completion of the Arrangement or any transaction or matter related to the Arrangement or contemplated by the Merger Agreement;
(d) not tender or cause to be tendered any Subject Securities to:
(i) to any corporate transactionAcquisition Proposal or other transaction or matter other than the Arrangement, such as a merger, amalgamation, arrangement, business combination, rights offering, reorganization, recapitalization, recapitalization or liquidation or take-over bid, sale or transfer of a material amount of assets of AuRico bid or similar transaction involving AuRico Agnico or the common shares of AuRico other than the Proposed Transaction and any transaction related thereto;
(ii) the issuance of any securities of AuRico (other than pursuant its Shares that could reasonably be expected to the exercise of Options prevent, delay, frustrate or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
(iii) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, or adversely affect in any material respect the Proposed Transaction including, without limitation, any AuRico Acquisition Proposal; or
(iv) any action or agreement that would result in a breach completion of any representation, warranty, or covenant or other obligation of AuRico in the Arrangement or any transaction or matter related to the Arrangement or contemplated by the Merger Agreement;
(c) upon the request or direction of Alamos, execute a proxy in respect of any resolution referred to in Section 3(b), and have all of its Subject Securities counted or not counted (as directed by Alamos) as part of a quorum in connection with any meeting of securityholders of AuRico relating to matters set forth in Section 3(b);
(d) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolution;
(e) not, without the prior written consent of AlamosXxxxxxxx, sell, transfer, assign, pledge, encumber hypothecate, encumber, grant a security interest in, gift or otherwise dispose ofof any Subject Securities, or enter into any agreement agreement, arrangement or understanding relating in connection with any of the foregoing (whether by actual disposition or effective economic disposition due to cash settlement or otherwise), other than (i) pursuant to the sale, transfer, assignment, pledge, encumbrance or other disposition of, the Subject Securities Arrangement or any interest therein (other than as transactions contemplated herein)by the Merger Agreement, provided, however, that nothing contained herein shall prohibit or permit any Affiliate of the Securityholder from exercising to do any Options of the foregoing, and (ii) with respect to the sale of a portion of any Shares issued upon vesting and exercise or settling settlement of the Options, PSUs and RSUs held by the Securityholder that vest prior to the completion of the Arrangement solely in order to satisfy any PSUs, RSUs or DSUs for cash and/or common shares of AuRico, as applicable (it being understood tax liabilities that such Securities will be voted arise in accordance with Section 3(a))connection therewith;
(f) not, except as required pursuant to this Agreement, grant or agree to grant any proxy proxy, power of attorney or other right to vote the Subject Securities, or deposit any of the Subject Securities or enter into any voting trust or enter into any vote pooling agreement or voting arrangement or enter into or subject any of the such Subject Securities to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting , calling of meetings of Agnico Shareholders, the tendering thereof, or tendering thereof the granting of consents or revoke approvals of any proxy granted pursuant kind with respect to this Agreementany Subject Securities;
(g) not exercise any rights of dissent or appraisal in respect of any resolution approving the Proposed Transaction Agnico Resolution or any aspect thereof or matter related theretoto the transactions contemplated by the Merger Agreement, and not exercise any other securityholder rights or remedies or bring or threaten to bring any suit or proceeding available at common law or pursuant to applicable securities, corporate or securities law or other legislation Law or not take any action that is reasonably likely to in any manner impede, interfere with, delay, postpone, hinder, prevent, frustrate, interfere with or challenge the Proposed TransactionArrangement or any transaction contemplated by the Merger Agreement;
(h) not, subject to Section 7without the prior written consent of Xxxxxxxx, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectly:
(i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, permitting any visit to any facilities or entering into any form of agreement, arrangement or understanding) any inquiries or proposals, whether publicly or otherwise, regarding an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(ii) enter into, engage, continue or participate in any negotiations or discussions regarding, or provide any non-public information with respect to AuRico or any of its subsidiaries, or offer or provide access to the business, properties, assets, books or records of AuRico or any of its subsidiaries or otherwise cooperate in any way with, any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in the requisition of any meeting of any of the securityholders of AuRico Agnico Shareholders for the purpose of considering any resolution; or
(iv) solicit resolution which may reasonably be expected to prevent, delay, frustrate or arrange or provide assistance to any other person to arrange for interfere with, the solicitation of, proxies relating to or purchases of or offers to sell common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico for the purpose of influencing the voting of common shares of AuRico or affecting the control of AuRico, other than, in the case of proxy solicitation, in support completion of the Proposed TransactionArrangement or any transaction or matter related to the Arrangement or contemplated by the Merger Agreement;
(i) promptly notify Alamos upon not make any public statement or take any other action of undersigned’s representations any kind which may reasonably be expected to prevent, delay, frustrate or warranties contained in this Agreement becoming untrue interferewith, the completion of the Arrangement or incorrect in any material respect prior transaction or matter related to the termination Arrangement or contemplated by the Merger Agreement; and
(j) not do indirectly that which it may not do directly in respect of the restrictions on its rights with respect to the Securityholder’s Subject Securities pursuant to this Agreement. The Securityholder acknowledges and agrees that any Options, PSUs, RSUs and DSUs held by him or her, to the extent not exercised or settled, shall be treated in accordance with the Arrangement and he or she shall take all steps required of him or her to give effect to such treatment.
Appears in 1 contract
Samples: Support and Voting Agreement
Covenants of the Securityholder. 1.1 The Securityholder acknowledges and agrees that he, she or it has received a copy of the Merger Agreement and, in particular, has been made aware of the provisions of Article VII of the Merger Agreement
1.2 The Securityholder hereby covenants and agrees thatagrees, from the date hereof until the earlier of: (i) the closing termination of the Proposed Transaction this Support Agreement pursuant to Article 3 hereof; and (ii) the date this Agreement is terminated Effective Date, except in accordance with its terms, the Securityholder shallterms of this Support Agreement:
(a) attend (either in person or by proxy) any AuRico Arrangement Meeting (including any adjournments and postponements thereof), and at the AuRico Arrangement Meeting, to irrevocably vote or cause to be voted at the Parent Meeting (including at any adjournment or postponement thereof) the Subject Shares in favour of any resolutions approving the Merger and other related matters or resolutions necessary or desirable to implement the Merger to be considered at the Parent Meeting and to deliver a proxy, or to the extent that the Securityholder is a beneficial owner, a voting instruction form, in each case duly completed and executed in respect of all of the Subject Shares, giving effect to such vote no later than 10 business days prior to the Parent Meeting;
(b) not to exercise any dissent rights or any other rights available to the Securityholder to delay, upset or challenge the Merger;
(c) not to exercise any shareholder rights or remedies available at common law pursuant to applicable securities or other laws to delay, hinder, upset or challenge the Merger;
(d) not to option, sell, assign, transfer, alienate, dispose of, gift, grant, pledge, create or permit an encumbrance on, grant a security interest in or otherwise convey any Subject Shares or any voting rights attached thereto or any other right or interest therein, or agree to do any of the foregoing, provided that, for the avoidance of doubt: (i) the Shares; Securityholder shall be entitled to exercise any Convertible Securities held by the Securityholder during the term of this Support Agreement, and (ii) any Subject Shares acquired by or issued on exercise of Convertible Securities during the term of this Support Agreement shall be subject to the Securityholder on or following the date hereof (including any common shares terms of AuRico issued upon the exercise, Options, PSUs, RSUs or DSUs); (iii) the Options, PSUs, RSUs or DSUs; and (iv) any Options, PSUs, RSUs or DSUs acquired by or issued to the Securityholder on or following the date hereof, that are beneficially owned by, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted at the AuRico Arrangement Meeting (the “Subject Securities”) in favour of the Proposed Transaction and all matters related thereto;
(b) vote or cause to be voted (in person or by proxy) at any meeting of the securityholders of AuRico any Subject Securities against, or not tender or cause to be tendered any Subject Securities to:
(i) any corporate transaction, such as a merger, amalgamation, arrangement, rights offering, reorganization, recapitalization, or liquidation or take-over bid, sale or transfer of a material amount of assets of AuRico or similar transaction involving AuRico or the common shares of AuRico other than the Proposed Transaction and any transaction related thereto;
(ii) the issuance of any securities of AuRico (other than pursuant to the exercise of Options or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
(iii) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, or adversely affect in any material respect the Proposed Transaction including, without limitation, any AuRico Acquisition Proposal; or
(iv) any action or agreement that would result in a breach of any representation, warranty, or covenant or other obligation of AuRico in the Arrangement this Support Agreement;
(c) upon the request or direction of Alamos, execute a proxy in respect of any resolution referred to in Section 3(b), and have all of its Subject Securities counted or not counted (as directed by Alamos) as part of a quorum in connection with any meeting of securityholders of AuRico relating to matters set forth in Section 3(b);
(d) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolution;
(e) not, without the prior written consent of Alamos, sell, transfer, assign, pledge, encumber or otherwise dispose of, or enter into any agreement or understanding relating not to the sale, transfer, assignment, pledge, encumbrance or other disposition of, the Subject Securities or any interest therein (other than as contemplated herein), provided, however, that nothing contained herein shall prohibit the Securityholder from exercising any Options or settling any PSUs, RSUs or DSUs for cash and/or common shares of AuRico, as applicable (it being understood that such Securities will be voted in accordance with Section 3(a));
(f) not, except as required pursuant to this Agreement, grant or agree to grant any proxy or other right to vote the Subject Securities Shares, or enter into any voting trust or pooling agreement or arrangement Merger or enter into or subject any of the such Subject Securities Shares to any other agreement, arrangementMerger, understanding or commitment, formal or informal, with respect to or relating to the voting or tendering thereof or revoke any proxy granted pursuant thereof, other than in support of the resolution approving the Merger and other related matters to this Agreementbe considered at the Parent Meeting;
(gf) not exercise any rights of dissent or appraisal in respect of any resolution approving the Proposed Transaction or any aspect thereof or matter related thereto, and not exercise any other securityholder rights or remedies available at common law or pursuant to applicable corporate or securities law or other legislation or not take any action that is reasonably likely to in any manner impede, interfere with, delay, postpone, hinder, prevent, or challenge the Proposed Transaction;
(h) not, subject to Section 7, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectly:
(i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, permitting any visit to any facilities or entering into any form of agreement, arrangement or understanding) any inquiries or proposals, whether publicly or otherwise, regarding an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(ii) enter into, engage, continue or participate in any negotiations or discussions regarding, or provide any non-public information with respect to AuRico or any of its subsidiaries, or offer or provide access to the business, properties, assets, books or records of AuRico or any of its subsidiaries or otherwise cooperate in any way with, any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in the requisition of any meeting of the securityholders shareholders of AuRico EFI for the purpose of considering any resolution; or;
(ivg) not to, in any manner, directly or indirectly, including through any Representative, solicit, initiate, or knowingly encourage any inquiries, proposals, offers or public announcements (or the submission or initiation of any of the foregoing) from any person regarding any Acquisition Proposal, engage in any negotiations concerning, or provide any information to, or have any discussions with or otherwise cooperate with, any person relating to an Acquisition Proposal,
(h) not to solicit or arrange or provide assistance to any other person to arrange for the solicitation of, proxies relating to or purchases of or offers to sell common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico Parent Common Shares or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico Parent Common Shares for the purpose of influencing the voting of common shares of AuRico or affecting the control of AuRico, other than, in the case of proxy solicitation, in support of the Proposed TransactionEFI;
(i) not to deposit or cause to be deposited the Securityholder’s Subject Shares under any Acquisition Proposal;
(j) not to take any action of any kind, directly or indirectly, which might reasonably be regarded as likely to reduce the success of, or delay or interfere with the completion of, the transactions contemplated by the Merger Agreement;
(k) to immediately cease, cause its Representatives to cease and cause to be terminated any existing solicitations, discussions or negotiations with any parties (other than with EFI or Uranerz or any Representative of EFI or Uranerz) with respect to any Acquisition Proposal or any potential Acquisition Proposal;
(l) to promptly notify Alamos upon Uranerz, at first orally and then in writing, of all Acquisition Proposals currently under consideration or of which the Securityholder is aware;
(m) to immediately notify Uranerz of any proposal, inquiry, offer or request of undersigned’s representations or warranties contained in this Agreement becoming untrue or incorrect in any material respect prior to which the termination of this Agreement. The Securityholder acknowledges and agrees that any Options, PSUs, RSUs and DSUs held by him or herSecurityholder, to the extent knowledge of the Securityholder, any of its directors, officers, employees, representatives or agents becomes, directly or indirectly, aware: relating to an Acquisition Proposal or potential Acquisition Proposal; for discussions or negotiations in respect of an Acquisition Proposal or potential Acquisition Proposal; for non-public information relating to EFI; or any material amendments to the foregoing. Such notice shall include the identity of the person making such proposal, inquiry, offer or request, a description of the terms and conditions of, and the identity of the person making, such proposal, inquiry, offer or request and such other details of the proposal, inquiry, offer or request as Uranerz may reasonably request; and
(n) not exercised to take any action to encourage or settledassist any other person to do any of the prohibited acts referred to in the foregoing provisions of this Section 1.2.
1.3 Nothing in this Article 1 shall prevent a Securityholder who is a member of the board of directors of EFI or is a senior officer of EFI from engaging, in the Securityholder’s capacity as a director or senior officer of EFI, in discussions or negotiations with a person in response to an Acquisition Proposal in circumstances where EFI is permitted by Section 7.2 of the Merger Agreement to engage in such discussions or negotiations, and provided further that no disclosure or notification is required under clauses 1.2(l) or (m) if the board of directors of EFI has determined that disclosure or notification of such Acquisition Proposal, proposal, inquiry, offer or request would not be required by EFI under Section 7.2 of the Merger Agreement. For greater certainty, the Securityholder acknowledges that this Section 1.3 shall be treated not affect the Securityholder’s obligation to vote the Subject Shares in favour of the Parent Resolution in accordance with the Arrangement terms and he or she shall take all steps required conditions of him or her to give effect to such treatmentthis Support Agreement.
Appears in 1 contract
Samples: Support Agreement (Energy Fuels Inc)
Covenants of the Securityholder. The (1) Subject to Section 5 of this Agreement, the Securityholder covenants and irrevocably agrees that, except as permitted by the Arrangement Agreement, the Securityholder shall, from the date hereof until the earlier of: of (i) the closing termination of the Proposed Transaction this Agreement pursuant to Section 6 of this Agreement, and (ii) the date this Agreement is terminated in accordance with its terms, the Securityholder shallEffective Date:
(a) attend not solicit, initiate, encourage, entertain or otherwise knowingly facilitate (either in person including by way of furnishing or by proxyproviding copies of, access to, or disclosure of, any confidential information, properties, facilities, books or records of XS) any AuRico Arrangement Meeting (including any adjournments and postponements thereof)inquiry, and at the AuRico Arrangement Meeting, vote proposal or cause offer that constitutes or may reasonably be expected to be voted all of: (i) the Shares; (ii) any Shares acquired by constitute or issued lead to the Securityholder on or following the date hereof (including any common shares of AuRico issued upon the exercise, Options, PSUs, RSUs or DSUs); (iii) the Options, PSUs, RSUs or DSUs; and (iv) any Options, PSUs, RSUs or DSUs acquired by or issued to the Securityholder on or following the date hereof, that are beneficially owned by, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted at the AuRico Arrangement Meeting (the “Subject Securities”) in favour of the Proposed Transaction and all matters related theretoan XS Acquisition Proposal;
(b) vote not enter into, engage in, continue or cause to be voted otherwise participate in any discussions or negotiations with any person (in person or by proxy) at any meeting of the securityholders of AuRico any Subject Securities against, or not tender or cause to be tendered any Subject Securities to:
(i) any corporate transaction, such as a merger, amalgamation, arrangement, rights offering, reorganization, recapitalization, or liquidation or take-over bid, sale or transfer of a material amount of assets of AuRico or similar transaction involving AuRico or the common shares of AuRico other than the Proposed Transaction Purchaser and its subsidiaries or affiliates) in respect of any transaction related inquiry, proposal or offer that constitutes or may reasonably be expected to lead to an XS Acquisition Proposal or remain neutral with respect thereto;
(ii) the issuance of any securities of AuRico (other than pursuant to the exercise of Options or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
(iii) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, or adversely affect in any material respect the Proposed Transaction including, without limitation, any AuRico Acquisition Proposal; or
(iv) any action or agreement that would result in a breach of any representation, warranty, or covenant or other obligation of AuRico in the Arrangement Agreement;
(c) upon the request or direction of Alamos, execute a proxy in respect of any resolution referred to in Section 3(b), and have all of its Subject Securities counted or not counted (as directed by Alamos) as part of a quorum in connection with any meeting of securityholders of AuRico relating to matters set forth in Section 3(b);
(d) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolution;
(e) not, without the prior written consent of AlamosPurchaser, sell, transfer, assign, pledge, encumber or otherwise dispose of, or enter into any agreement or understanding relating to the sale, transfer, assignment, pledge, encumbrance or other disposition of, any of the Securityholder’s Subject Securities or any right or interest therein (other than as contemplated herein)) to any person or group, provided, however, that nothing contained herein shall prohibit the Securityholder from exercising or causing to be exercised any Subject Options or settling any PSUs, RSUs or DSUs for cash and/or common shares of AuRico, as applicable Subject Warrants (it being understood and agreed that such Securities securities will be voted in accordance with Section 3(a)2(1);
(fd) not, except as required pursuant to this Agreement, grant or agree to grant or cause to be granted any proxy proxy, power of attorney or other right to vote the Subject Securities or enter into any voting trust or pooling agreement or arrangement merger or enter into or subject any of the Subject Securities to any other agreement, arrangementmerger, understanding or commitment, formal or informal, written or oral, with respect to or relating to the voting or tendering thereof or revoke or cause to be revoked any proxy granted pursuant to this Agreement;
(ge) not exercise or cause to be exercised any rights of dissent or appraisal (each of which is expressly and irrevocably waived by the Securityholder to the fullest extent permitted by Laws, and if not permitted to be waived in advance pursuant to Laws, will be waived at such time as permitted by Laws) in respect of any resolution approving the Proposed Transaction Arrangement or any aspect thereof or matter related thereto, and not exercise or cause to be exercised any other securityholder rights or remedies available at common law or pursuant to applicable corporate or securities law Law or other legislation (including commencing, maintaining, prosecuting or not take voluntarily aiding any action that is reasonably likely which challenges the validity of or seeks to in enjoin the operation of any manner impede, interfere with, delay, postpone, hinder, prevent, provision of this Agreement or challenge the Proposed TransactionArrangement Agreement);
(hf) not, subject to Section 7, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectly:
promptly (i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, permitting any visit to any facilities or entering into any form of agreement, arrangement or understanding) any inquiries or proposals, whether publicly or otherwise, regarding an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(ii) enter into, engage, continue or participate but in any negotiations or discussions regarding, or provide any non-public information with respect to AuRico or any of its subsidiaries, or offer or provide access to the business, properties, assets, books or records of AuRico or any of its subsidiaries or otherwise cooperate in any way with, any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iiievent within three Business Days) requisition or join in the requisition of any meeting of the securityholders of AuRico for the purpose of considering any resolution; or
(iv) solicit or arrange or provide assistance to any other person to arrange for the solicitation of, proxies relating to or purchases of or offers to sell common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico for the purpose of influencing the voting of common shares of AuRico or affecting the control of AuRico, other than, in the case of proxy solicitation, in support of the Proposed Transaction;
(i) promptly notify Alamos Purchaser upon any of undersignedthe Securityholder’s representations or warranties contained in this Agreement becoming untrue or incorrect in any material respect prior to the termination of this Agreement. ; and
(g) not take, propose to take or commit to any action inconsistent with the terms of this Agreement or any other action of any kind which might reasonably be regarded as likely to reduce the success of, or delay or interfere with the completion of, the Arrangement.
(2) The Securityholder acknowledges and agrees that that, if the Securityholder acquires any additional Shares, Options, PSUsor Warrants following the date hereof, RSUs including, but not limited to, additional Shares acquired upon the exercise of Subject Options or Subject Warrants, then such additional Shares, Options and DSUs held Warrants shall be deemed to be Subject Shares, Subject Options, or Subject Warrants, as applicable, for the purposes of this Agreement and the Securityholder shall abide by him the terms of this Agreement in respect of such Shares, Options and Warrants. The Securityholder agrees to promptly (but in any event within three Business Days) notify Purchaser of any acquisitions by the Securityholder or herany of the Securityholder’s affiliates of any securities of XS, to after the extent not exercised or settleddate hereof, which, for greater certainty, shall include any Options and Warrants and any Shares issuable upon the exercise or conversion of any Options and Warrants owned, directly or indirectly, or controlled by the Securityholder which may be treated in accordance with the Arrangement and he exercised, converted into, exchanged, settled or she shall take all steps required of him or her to give effect to such treatmentredeemed for Shares.
Appears in 1 contract
Samples: Arrangement Agreement
Covenants of the Securityholder. The Securityholder hereby irrevocably covenants and agrees that, until the earlier of: (i) the closing of the Proposed Transaction and (ii) the date this Agreement is terminated in accordance with its terms, the Securityholder shallas follows:
(a) attend from the date of this Agreement until the termination of this Agreement in accordance with its terms (either the “Expiry Time”), the Securityholder shall not (A) sell, transfer, gift, assign, convey, pledge, hypothecate, encumber, grant any option with respect to, grant a security interest in person or otherwise dispose of any right or interest in (including by proxyway of deposit or tender under any take-over bid) (any such event, a “Transfer”) any AuRico Arrangement Meeting of the Subject Securities, other than the exercise, exchange, vesting or conversion of Sunward Options or Sunward DSUs in accordance with their terms for Sunward Shares, which Sunward Shares will become Subject Securities hereunder, or enter into any agreement, arrangement or understanding in connection therewith (including any adjournments and postponements thereofwhether by actual disposition or effective economic disposition due to cash settlement or otherwise), other than pursuant to the Arrangement, without having first obtained the prior written consent of the Purchaser, or (B) other than as set forth herein, grant any proxies or powers of attorney with respect to any Subject Securities, deposit any Subject Securities into a voting trust, in any way transfer any of the voting rights associated with any of the Subject Securities, or enter into a voting agreement, understanding or arrangement with respect to the right to vote, call meetings of Sunward Shareholders or give consents or approvals of any kind with respect to any Subject Securities. In furtherance of this Agreement, the Securityholder hereby authorizes the Purchaser, Sunward or their respective legal counsel to notify Sunward’s transfer agent that there is a stop transfer order with respect to all of the Subject Securities (and at that this Agreement places limits on the AuRico Arrangement Meetingvoting and transfer of such Subject Securities, as applicable), provided that if any such action involves costs to the Securityholder, those costs shall be paid or reimbursed by the Purchaser. The Parties agree that such stop transfer order shall be removed and shall be of no further force and effect upon the termination of this Agreement in accordance with Section 4.1;
(b) from time to time, until the Expiry Time, to vote (or cause to be voted voted) all of: the Subject Shares at any meeting of any of the securityholders of Sunward at which the Securityholder is entitled to vote, including without limitation the Sunward Meeting, and in any action by written consent of the securityholders of Sunward:
(i) the Shares; (ii) any Shares acquired by or issued to the Securityholder on or following the date hereof (including any common shares of AuRico issued upon the exercise, Options, PSUs, RSUs or DSUs); (iii) the Options, PSUs, RSUs or DSUs; and (iv) any Options, PSUs, RSUs or DSUs acquired by or issued to the Securityholder on or following the date hereof, that are beneficially owned by, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted at the AuRico Arrangement Meeting (the “Subject Securities”) in favour of the Proposed Transaction approval, consent, ratification and all matters related thereto;adoption of the Arrangement Resolution and the transactions contemplated by the Arrangement Agreement (and any actions required for the consummation of the transactions contemplated by the Arrangement Agreement); and
(bii) vote or cause to be voted other than the Arrangement, against (in person or by proxy) at any meeting of the securityholders of AuRico any Subject Securities against, or not tender or cause to be tendered any Subject Securities to:
(iA) any extraordinary corporate transaction, such as a including any merger, reorganization, consolidation, amalgamation, arrangement, rights offeringbusiness combination, reorganizationshare exchange, liquidation, dissolution, recapitalization, or liquidation similar transaction involving Sunward or take-over bidany of its subsidiaries; (B) any sale, sale lease or transfer of a material amount any significant part of the assets of AuRico Sunward or similar transaction any of its subsidiaries; (C) any Acquisition Proposal involving AuRico Sunward or any of its subsidiaries; (D) any material change in the capitalization of Sunward or any of its subsidiaries or the common shares corporate structure or constating documents of AuRico other than the Proposed Transaction and Sunward or any transaction related thereto;
of its subsidiaries; (ii) the issuance of any securities of AuRico (other than pursuant to the exercise of Options or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
(iiiE) any action that is would reasonably likely be expected to impede, delay, interfere with, delay, postpone, hinder, prevent, or adversely affect in any material respect discourage the Proposed Transaction including, without limitation, any AuRico Acquisition Proposaltransactions contemplated by the Arrangement Agreement; or
and (ivF) any action or agreement that would result in a breach of any representationcovenant, warranty, representation or covenant warranty or any other obligation or agreement of AuRico in Sunward under the Arrangement Agreement; in connection with the foregoing, subject to this Section 3.1(b), the Securityholder shall deposit an irrevocable proxy, duly completed and executed in respect of all of the Subject Shares at least five (5) business days prior to the Sunward Meeting, voting all such Subject Shares in favour of the Arrangement Resolution and otherwise in the manner described in this Section 3.1(b) . Neither the Securityholder nor any Person acting on his, her or its behalf will take any action to withdraw, amend or invalidate any proxy deposited by the Securityholder pursuant to this Agreement, notwithstanding any statutory or other rights which the Securityholder might have unless this Agreement is terminated in accordance with Section 4.1;
(c) upon until the request or direction of AlamosExpiry Time, execute a proxy in respect of any resolution referred to in Section 3(b), and have all of its Subject Securities counted or not counted (as directed by Alamos) as part of a quorum in connection with any meeting of securityholders of AuRico relating to matters set forth in Section 3(b);
(d) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolution;
(e) not, without the prior written consent of Alamosthe Purchaser, sellrequisition or join in the requisition of any meeting of any of the securityholders of Sunward for the purpose of considering any resolution;
(d) from time to time, transferuntil the Expiry Time, assignwhen any meeting of Sunward securityholders is held, pledge, encumber to appear at such meeting or otherwise dispose ofcause the applicable Subject Securities to be counted as present thereat for the purpose of establishing a quorum;
(e) until the Expiry Time, neither the Securityholder nor any of his, her or its Representatives will, directly or indirectly: (A) solicit, initiate, encourage or otherwise facilitate (including by way of entering into any agreement, arrangement or understanding) inquiries, submissions of proposals or offers from, or enter into provide information to, any agreement other Person, entity or understanding relating to the sale, transfer, assignment, pledge, encumbrance or other disposition of, the Subject Securities or any interest therein group (other than as contemplated herein)the Purchaser) relating to any Acquisition Proposal or potential Acquisition Proposal, provided(B) participate in any discussions or negotiations regarding any Acquisition Proposal, howeveror (C) accept, that nothing contained herein enter into or endorse, or publicly propose to accept or enter into, any letter of intent, agreement, arrangement or understanding related to any Acquisition Proposal. Nothing in this Section 3.1(e) shall prohibit prevent any shareholder, director or officer of the Securityholder Securityholder, if applicable, who is also a director or officer of Sunward from exercising any Options fulfilling his or settling any PSUsher fiduciary obligations, RSUs or DSUs for cash and/or common shares of AuRico, as applicable (it being understood provided that such Securities will be voted act or thing is permitted by and is done in accordance strict compliance with Section 3(a))the terms of the Arrangement Agreement;
(f) notto:
(i) immediately cease and cause to be terminated any and all solicitations, except as required pursuant encouragements, existing discussions and negotiations, if any, with any Person or group or any agent or representative of such Person or group with respect to this Agreementany Acquisition Proposal or potential Acquisition Proposal; and
(ii) immediately (and in any event within 48 hours following receipt) notify the Purchaser of any Acquisition Proposal or inquiry in respect of a potential Acquisition Proposal of which the Securityholder or, grant or agree to grant any proxy or other right to vote the Subject Securities or enter into any voting trust or pooling agreement or arrangement or enter into or subject knowledge of the Securityholder, any of the Subject Securities to any other agreementshareholders, arrangementdirectors or officers of the Securityholder, understanding if applicable, becomes aware. Such notification shall be made orally and in writing and shall include the identity of the Person making such Acquisition Proposal or commitmentinquiry and a description of the material terms and conditions thereof, formal or informal, together with respect to or a copy of all documentation relating to such Acquisition Proposal or inquiry; provided however that such notification shall not be required if Sunward has already notified the voting or tendering thereof or revoke any proxy granted pursuant to this Purchaser in the manner contemplated by the Arrangement Agreement;
(g) not exercise to waive any rights of appraisal or rights of dissent or appraisal in respect of that the Securityholder may have arising from the transactions contemplated by the Arrangement Agreement;
(h) until the Expiry Time, to not make any resolution approving statements which may reasonably be construed as being against the Proposed Transaction transactions contemplated by the Arrangement Agreement or any aspect thereof and to not bring, or matter related theretothreaten to bring, any suit or proceeding for the purpose of, or which has the effect of, directly or indirectly, stopping, preventing, impeding, delaying or varying such transactions or any aspect thereof;
(i) to promptly notify the Purchaser of any acquisitions by the Securityholder or any of his, her or its affiliates of any securities of Sunward, if any, after the date hereof, which, for greater certainty, shall include any Sunward Options and Sunward DSUs and any Sunward Shares issuable upon the exercise, conversion or vesting, as applicable, of any Sunward Options or Sunward DSUs, owned or controlled by the Securityholder which may be exercised, converted into or exchanged for Sunward Shares. Any such securities shall be subject to the terms of this Agreement as though they were Subject Securities owned by the Securityholder on the date hereof;
(j) until the Expiry Time, not to (i) exercise any other securityholder rights or remedies available at common law or pursuant to applicable corporate securities legislation; or securities law or other legislation or not (ii) take any other action that is of any kind, in each case which might reasonably be regarded as likely to in any manner impede, interfere with, delay, postpone, hinder, preventreduce the success of, or challenge delay or interfere with the Proposed Transactioncompletion of, the transactions contemplated by the Arrangement Agreement;
(hk) not, subject to Section 7, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectlySecurityholder hereby irrevocably consents to:
(i) solicitdetails of this Agreement being set out in any information circular and court documents produced by Sunward, assist, initiate, knowingly encourage the Purchaser or otherwise facilitate (including any of their respective affiliates in connection with the transactions contemplated by way of furnishing information, permitting any visit to any facilities or entering into any form of agreement, arrangement or understanding) any inquiries or proposals, whether publicly or otherwise, regarding an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;this Agreement and the Arrangement Agreement; and
(ii) enter intothis Agreement being made publicly available, engageincluding by filing on SEDAR;
(l) except as required by applicable Law or applicable stock exchange requirements, continue not to make any public announcement or participate in any negotiations or discussions regarding, or provide any non-public information statement with respect to AuRico the transactions contemplated herein or any of its subsidiaries, or offer or provide access pursuant to the business, properties, assets, books or records of AuRico or any of its subsidiaries or otherwise cooperate in any way with, any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in Arrangement Agreement without the requisition of any meeting prior written approval of the securityholders of AuRico for the purpose of considering any resolution; or
(iv) solicit or arrange or provide assistance to any other person to arrange for the solicitation of, proxies relating to or purchases of or offers to sell common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico for the purpose of influencing the voting of common shares of AuRico or affecting the control of AuRico, other thanPurchaser and, in the case of proxy solicitationany such public announcement or statement is required by applicable Law or applicable stock exchange requirements, to consult with the Purchaser and provide the Purchaser a reasonable opportunity to review and comment on any such public announcement or statement, and give reasonable consideration to any comments made by the Purchaser and its legal counsel; and
(m) to use his or her commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Sunward and the Purchaser in doing, all things necessary, proper or advisable to consummate and make effective, in support the most expeditious manner possible, the Arrangement and the other transactions contemplated by the Arrangement Agreement, and to carry out the intents and purposes of this Agreement, and, other than pursuant to and in compliance with Section 7.2 of the Proposed Transaction;
(i) promptly notify Alamos upon Arrangement Agreement, to not enter into any of undersigned’s representations agreement or warranties understanding or make any commitment with any Person that would violate any provision or agreement contained in this Agreement becoming untrue or incorrect in any material respect prior to the termination of this Agreement. The Securityholder acknowledges and agrees that any Options, PSUs, RSUs and DSUs held by him or her, to the extent not exercised or settled, shall be treated in accordance with the Arrangement and he or she shall take all steps required of him or her to give effect to such treatment.
Appears in 1 contract
Covenants of the Securityholder. 1.1 The Securityholder acknowledges and agrees that he, she or it:
(a) has received a copy of the Combination Agreement and, in particular, has been made aware of the provisions of Section 6.1 of the Combination Agreement; and
(b) will comply with the requirements of Section 6.1 of the Combination Agreement and, in particular, will not take any action which would, or would reasonably be expected to, cause the Company to be in breach of any of its obligations under such Section, subject in each case to the other terms of the Combination Agreement and the terms of this Support Agreement.
1.2 The Securityholder hereby covenants and agrees thatagrees, from the date hereof until the earlier of: :
(i) the closing termination of the Proposed Transaction this Support Agreement pursuant to Article 3 hereof; and (ii) the date this Agreement is terminated Effective Time, except in accordance with its terms, the Securityholder shallterms of this Support Agreement:
(a) attend (either in person or by proxy) any AuRico Arrangement Meeting (including any adjournments and postponements thereof), and at the AuRico Arrangement Meeting, to irrevocably vote or cause to be voted all of: at the Meeting (iincluding at any adjournment or postponement thereof) the Shares; (ii) any Subject Common Shares acquired by or issued to the Securityholder on or following the date hereof (including any common shares of AuRico issued upon the exercise, Options, PSUs, RSUs or DSUs); (iii) the Options, PSUs, RSUs or DSUs; and (iv) any Options, PSUs, RSUs or DSUs acquired by or issued to the Securityholder on or following the date hereof, that are beneficially owned by, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted at the AuRico Arrangement Meeting (the “Subject Securities”) in favour of the Proposed Transaction Amalgamation Resolution and all other related matters related theretoor resolutions necessary or desirable to implement the Amalgamation to be considered at the Meeting;
(b) vote not to exercise any dissent rights or cause any other rights available to be voted (in person the Securityholder to delay, upset or by proxy) at any meeting of challenge the securityholders of AuRico any Subject Securities against, or not tender or cause to be tendered any Subject Securities to:
(i) any corporate transaction, such as a merger, amalgamation, arrangement, rights offering, reorganization, recapitalization, or liquidation or take-over bid, sale or transfer of a material amount of assets of AuRico or similar transaction involving AuRico or the common shares of AuRico other than the Proposed Transaction and any transaction related theretoAmalgamation;
(iic) not to exercise any shareholder rights or remedies available at common law pursuant to applicable securities or other Laws to delay, hinder, upset or challenge the issuance Amalgamation;
(d) not to acquire direct or indirect beneficial ownership or control of any securities additional Common Shares or Convertible Securities or obtain or enter into any right to do so, with the exception of AuRico (other than any Common Shares acquired pursuant to the exercise of Options or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
(iii) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, or adversely affect in any material respect the Proposed Transaction including, without limitation, any AuRico Acquisition Proposal; or
(iv) any action or agreement that would result in a breach of any representation, warranty, or covenant or other obligation of AuRico in the Arrangement Agreement;
(c) upon the request or direction of Alamos, execute a proxy in respect of any resolution referred to in Section 3(b), and have all of its Subject Convertible Securities counted or not counted (as directed by Alamos) as part of a quorum in connection with any meeting of securityholders of AuRico relating to matters set forth in Section 3(b);
(d) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of listed immediately below such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolutionSecurityholder’s Acceptance;
(e) not, without not to acquire direct or indirect beneficial ownership or control of more than five percent of the prior written consent common stock of Alamos, sell, transfer, assign, pledge, encumber or otherwise dispose of, or enter into any agreement or understanding relating to the sale, transfer, assignment, pledge, encumbrance or other disposition of, the Subject Securities or any interest therein (other than as contemplated herein), provided, however, that nothing contained herein shall prohibit the Securityholder from exercising any Options or settling any PSUs, RSUs or DSUs for cash and/or common shares of AuRico, as applicable (it being understood that such Securities will be voted in accordance with Section 3(a))Parent;
(f) notnot to option, except as required pursuant sell, assign, transfer, alienate, dispose of, gift, grant, pledge, create or permit an Encumbrance on, grant a security interest in or otherwise convey any Subject Common Shares or any voting rights attached thereto or any other right or interest therein, or agree to this Agreement, do any of the foregoing;
(g) not to grant or agree to grant any proxy or other right to vote the Subject Securities Common Shares, or enter into any voting trust or pooling agreement or arrangement or enter into or subject any of the such Subject Securities Common Shares to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting or tendering thereof or revoke any proxy granted pursuant thereof, other than in support of the Amalgamation Resolution and other related matters to this Agreement;
(g) not exercise any rights of dissent or appraisal in respect of any resolution approving be considered at the Proposed Transaction or any aspect thereof or matter related thereto, and not exercise any other securityholder rights or remedies available at common law or pursuant to applicable corporate or securities law or other legislation or not take any action that is reasonably likely to in any manner impede, interfere with, delay, postpone, hinder, prevent, or challenge the Proposed TransactionMeeting;
(h) not, subject not to Section 7, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectly:
(i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, permitting any visit to any facilities or entering into any form of agreement, arrangement or understanding) any inquiries or proposals, whether publicly or otherwise, regarding an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(ii) enter into, engage, continue or participate in any negotiations or discussions regarding, or provide any non-public information with respect to AuRico or any of its subsidiaries, or offer or provide access to the business, properties, assets, books or records of AuRico or any of its subsidiaries or otherwise cooperate in any way with, any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in the requisition of any meeting of the securityholders shareholders of AuRico the Company for the purpose of considering any resolution; or;
(ivi) not to, in any manner, directly or indirectly, including through any Representative, solicit, initiate, or knowingly encourage any inquiries, proposals, offers or public announcements (or the submission or initiation of any of the foregoing) from any Person regarding any Alternative Transaction, engage in any negotiations concerning, or provide any informat ion to, or have any discussions with or otherwise cooperate with, any Person relating to an Alternative Transaction, or otherwise knowingly facilitate or knowingly encourage any effort or attempt to make or implement an Alternative Transaction;
(j) not to solicit or arrange or provide assistance to any other person Person to arrange for the solicitation of, proxies relating to or purchases of or offers to sell common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico Common Shares or act in concert or jointly with any other person Person for the purpose of acquiring any common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico Common Shares for the purpose of influencing the voting of common shares of AuRico or affecting the control of AuRico, other than, in the case of proxy solicitation, in support of the Proposed Company;
(k) not to deposit or cause to be deposited such Securityholder’s Subject Common Shares under any Alternative Transaction;
(il) promptly notify Alamos upon any of undersigned’s representations or warranties contained in this Agreement becoming untrue or incorrect in any material respect not to, except as required by applicable Laws, prior to the termination public announcement by Parent of the entering into of the Combination Agreement, directly or indirectly, disclose to any Person (other than the Company and its financial and legal advisors) the existence of this Support Agreement or the terms and conditions of this Support Agreement. The , or the possibility of Parent entering into the Combination Agreement or any terms or conditions or other information concerning the Combination Agreement and the transactions contemplated therein;
(m) not to take any action of any kind, directly or indirectly, which might reasonably be regarded as likely to reduce the success of, or delay or interfere with the completion of the transactions contemplated by the Combination Agreement;
(n) to immediately cease, cause its Representatives to cease and cause to be terminated any existing solicitations, discussions or negotiations with any parties (other than the Parent or any Representative of the Parent) with respect to any Alternative Transaction or any potential Alternative Transaction;
(o) to promptly notify Parent, at first orally and then in writing, of all Alternative Transactions currently under consideration or of which the Securityholder acknowledges and agrees that is aware;
(p) to immediately notify the Parent of any Optionsproposal, PSUsinquiry, RSUs and DSUs held by him offer or herrequest of which the Securityholder, to the extent knowledge of the Securityholder, any of its directors, officers, employees, representatives or agents becomes, directly or indirectly, aware: relating to an Alternative Transaction or potential Alternative Transaction; for discussions or negotiations in respect of an Alternative Transaction or potential Alternative Transaction; for non-public information relating to the Company; or any material amendments to the foregoing. Such notice shall include the identity of the Person making such proposal, inquiry, offer or request, a description of the terms and conditions of, and the identity of the Person making, such proposal, inquiry, offer or request and such other details of the proposal, inquiry, offer or request as the Parent may reasonably request;
(q) to exercise the voting rights attaching to the Subject Common Shares and otherwise use the Securityholder’s commercially reasonable efforts in the Securityholder’s capacity as a Shareholder to oppose any proposed action by the Company or the Shareholders or any other Person (i) in respect of any Alternative Transaction involving the Company; or (ii) which may in any manner adversely affect, by delay or otherwise, the successful completion of the Amalgamation, including without limitation, any amendment to the articles, constating documents, by-laws, constating documents or corporate structure of the Company, or (iii) which would reasonably be expected to result in a Material Adverse Change; and
(r) not exercised to take any action to encourage or settledassist any other Person to do any of the prohibited acts referred to in the foregoing provisions of this Section 1.2.
1.3 Nothing in this Article 1 shall prevent a Securityholder who is a member of the board of directors of the Company or is a senior officer of the Company from engaging, in such Securityholder’s capacity as a director or senior officer of the Company, in discussions or negotiations with a Person in response to an unsolicited bona fide Alternative Transaction made in writing to the Board of Directors of the Company by such Person (which Alternative Transaction did not result from a breach of this Support Agreement or the Combination Agreement) in circumstances where the Company is permitted by section 6.1(d) of the Combination Agreement to engage in such discussions or negotiations. For greater certainty, the Securityholder acknowledges that this Section 1.3 shall be treated not affect such Securityholder’s obligation to vote the Subject Common Shares in favour of the Amalgamation Resolution in accordance with the Arrangement terms and he or she shall take all steps required conditions of him or her to give effect to such treatmentthis Support Agreement.
Appears in 1 contract
Samples: Support Agreement
Covenants of the Securityholder. The Securityholder irrevocably covenants and agrees to and for the benefit of AcquireCo that, until the earlier of: (ix) the closing of the Proposed Transaction Release Date, as defined below; and (iiy) the date termination of this Agreement is terminated in accordance with its terms, the Securityholder shall:
(a) attend (either in person or by proxy) any AuRico meeting of the TargetCo Securityholders convened for the purposes of considering the Arrangement Meeting (including including, any adjournments and postponements thereof), ) and at the AuRico Arrangement Meeting, vote or cause to be voted all of: (i) the Shares; (ii) any Shares acquired by or issued voted, to the Securityholder on or following extent applicable, all of the date hereof (including any common shares of AuRico issued upon the exercise, Options, PSUs, RSUs or DSUs); (iii) the Options, PSUs, RSUs or DSUs; and (iv) any Options, PSUs, RSUs or DSUs acquired by or issued to the Securityholder on or following the date hereof, that are beneficially owned by, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted at the AuRico Arrangement Meeting (the “Subject Securities”) Securities in favour of the Proposed Transaction Arrangement and all other matters related theretothereto that are necessary for, or ancillary to, implementing the Arrangement;
(b) except for all such actions that are permitted under Section 5, vote or cause to be voted (in person or by proxy) at any meeting of the securityholders of AuRico any Subject Securities against, or not tender or cause to be tendered any Subject Securities to:
(i) any corporate extraordinary transaction, such as a merger, amalgamation, arrangement, rights offering, reorganization, recapitalization, or liquidation involving TargetCo or take-over bid, any of its subsidiaries or affiliates other than the Arrangement and any transaction related thereto;
(ii) a sale or transfer of a material amount of assets of AuRico TargetCo or similar transaction involving AuRico or the common shares of AuRico other than the Proposed Transaction and any transaction related thereto;
(ii) the issuance of any securities of AuRico TargetCo or any of its subsidiaries or affiliates (other than pursuant to the exercise of TargetCo Options or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;TargetCo Warrants); or
(iii) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, or adversely affect in any material respect the Proposed Transaction including, without limitation, any AuRico Acquisition Proposal; or
(iv) any action or agreement that would result in a breach of any representation, warranty, or covenant or other obligation of AuRico in the Arrangement AgreementArrangement;
(c) upon the request or direction of Alamosexcept as contemplated herein, execute a proxy in respect of any resolution referred to in Section 3(b), and have all of its Subject Securities counted or not counted (as directed by Alamos) as part of a quorum in connection with any meeting of securityholders of AuRico relating to matters set forth in Section 3(b);
(d) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolution;
(e) not, without the prior written consent of Alamos, sell, transfer, assign, pledge, encumber or otherwise dispose of, of (other than by operation of Laws) or enter into any agreement or understanding relating to the sale, transfer, assignment, pledge, encumbrance assignment or other disposition of, the Subject Securities or any interest therein (other than as contemplated herein), provided, however, that nothing contained herein shall prohibit the Securityholder from exercising any Options or settling any PSUs, RSUs or DSUs for cash and/or common shares of AuRico, as applicable (it being understood that such Securities will be voted in accordance with Section 3(a));
(f) not, except as required pursuant to this Agreement, grant or agree to grant any proxy or other right to vote the Subject Securities or enter into any voting trust or pooling agreement or arrangement or enter into or subject any of the Subject Securities (other than TargetCo Options or TargetCo Warrants in respect of which the Securityholder has exercised his, her or its right to acquire TargetCo Shares in accordance with their terms or as contemplated herein or by the Arrangement Agreement) or permit any other agreementaffiliate of the Securityholder to do any of the foregoing;
(d) if the Securityholder holds TargetCo Options, arrangement, understanding exercise all TargetCo Options held by the Securityholder or commitment, formal or informal, surrender such TargetCo Options in accordance with respect to or relating to the voting or tendering thereof or revoke any proxy granted pursuant to this Arrangement Agreement;
(ge) not exercise any rights of dissent or appraisal in respect of any resolution approving the Proposed Transaction Arrangement or any aspect thereof or matter related thereto, and not exercise any other securityholder rights or remedies available at common law or pursuant to applicable corporate or securities law or other legislation or not take any action that is reasonably likely Applicable Laws to in any manner impede, interfere with, delay, postpone, hinder, prevent, interfere with or challenge the Proposed TransactionArrangement;
(h) not, subject to Section 7, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectly:
(i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, permitting any visit to any facilities or entering into any form of agreement, arrangement or understanding) any inquiries or proposals, whether publicly or otherwise, regarding an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(ii) enter into, engage, continue or participate in any negotiations or discussions regarding, or provide any non-public information with respect to AuRico or any of its subsidiaries, or offer or provide access to the business, properties, assets, books or records of AuRico or any of its subsidiaries or otherwise cooperate in any way with, any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in the requisition of any meeting of the securityholders of AuRico for the purpose of considering any resolution; or
(iv) solicit or arrange or provide assistance to any other person to arrange for the solicitation of, proxies relating to or purchases of or offers to sell common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico for the purpose of influencing the voting of common shares of AuRico or affecting the control of AuRico, other than, in the case of proxy solicitation, in support of the Proposed Transaction;
(if) promptly notify Alamos AcquireCo upon any of the undersigned’s 's representations or warranties contained in this Agreement becoming untrue or incorrect in any material respect prior to the termination Release Date, and for the purposes of this Agreement. The Securityholder acknowledges provision, each representation and agrees that any Options, PSUs, RSUs and DSUs held by him or her, to the extent not exercised or settled, warranty shall be treated deemed to be given at and as of all times during such period (irrespective of any language which suggests that it is only being given as at the date hereof); and
(g) subject to Section 5, not, and will use its commercially reasonable efforts to cause its representatives and advisors not to, directly or indirectly:
(i) solicit, facilitate, initiate or encourage or take any action to solicit, facilitate or encourage any Acquisition Proposal; or
(ii) enter into or participate in accordance any negotiations or initiate any discussion regarding an Acquisition Proposal, or furnish to any other person any information with respect to TargetCo's or its subsidiaries' businesses, properties, operations, prospects or conditions (financial or otherwise) in connection with an Acquisition Proposal or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt of any other Person to do or seek to do any of the Arrangement and he or she shall take all steps required of him or her to give effect to such treatmentforegoing.
Appears in 1 contract
Samples: Voting Support Agreement (Gran Tierra Energy, Inc.)
Covenants of the Securityholder. The Securityholder covenants irrevocably and unconditionally covenants, undertakes and agrees that, until the earlier of: (i) the closing termination of the Proposed Transaction and (ii) the date this Agreement is terminated in accordance with its terms, the Securityholder shall:
(a) not, directly or indirectly, solicit, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing or providing copies of, access to, or disclosure of, any information, properties, facilities, books or records of Agnico, Xxxxxxxx or any of their respective Subsidiaries) or take any action to solicit, initiate or knowingly encourage or otherwise facilitate, or otherwise engage or participate in, and immediately cease and cause to be terminated, any negotiations or any discussions regarding any inquiry, proposal, expression of interest or offer that constitutes or could reasonably be expected to constitute or lead to, an Acquisition Proposal in respect of Xxxxxxxx;
(b) attend (either virtually, in person or by proxy) any AuRico meeting (including the Xxxxxxxx Meeting) of the securityholders of Xxxxxxxx convened for the purposes of considering the Arrangement Meeting or to give effect to the Arrangement (including any adjournments and postponements thereof), and at the AuRico Arrangement Meetingsuch meeting, cause its Subject Securities to be counted as present for purposes of establishing quorum and, vote or cause to be voted all of: of the Subject Securities (i) the Shares; (ii) any Shares acquired by or issued which have a right to the Securityholder on or following the date hereof (including any common shares of AuRico issued upon the exercise, Options, PSUs, RSUs or DSUs); (iii) the Options, PSUs, RSUs or DSUs; and (iv) any Options, PSUs, RSUs or DSUs acquired by or issued to the Securityholder on or following the date hereof, that are beneficially owned by, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted vote at the AuRico Arrangement Meeting (the “Subject Securities”such meeting) in favour of the Proposed Transaction approval of the Arrangement (including the Arrangement Resolution) and the transactions contemplated by the Merger Agreement (and any actions reasonably required for the consummation of the transactions contemplated in the Merger Agreement and all matters related thereto);
(bc) attend (virtually, in person or by proxy) any meeting (including the Xxxxxxxx Meeting) of the securityholders of Xxxxxxxx convened for the purposes of considering any Acquisition Proposal and/or any other transaction or matter that could reasonably be expected to delay, prevent, frustrate or interfere with the consummation of the Arrangement or any transaction or matter contemplated by the Merger Agreement (including any adjournments and postponements thereof), and at such meeting, cause its Subject Securities to be counted as present for purposes of establishing quorum and, vote or cause to be voted (in person or by proxy) at any meeting all of the securityholders of AuRico any Subject Securities against(which have a right to vote at such meeting) against any Acquisition Proposal and/or any transaction or matter that could reasonably be expected to delay, prevent, frustrate or interfere with, the completion of the Arrangement or any transaction or matter related to the Arrangement or contemplated by the Merger Agreement;
(d) not tender or cause to be tendered any Subject Securities to:
(i) to any corporate transactionAcquisition Proposal or other transaction or matter other than the Arrangement, such as a merger, amalgamation, arrangement, business combination, rights offering, reorganization, recapitalization, recapitalization or liquidation or take-over bid, sale or transfer of a material amount of assets of AuRico bid or similar transaction involving AuRico Xxxxxxxx or the common shares of AuRico other than the Proposed Transaction and any transaction related thereto;
(ii) the issuance of any securities of AuRico (other than pursuant its Shares that could reasonably be expected to the exercise of Options prevent, delay, frustrate or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
(iii) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, or adversely affect in any material respect the Proposed Transaction including, without limitation, any AuRico Acquisition Proposal; or
(iv) any action or agreement that would result in a breach completion of any representation, warranty, or covenant or other obligation of AuRico in the Arrangement or any transaction or matter related to the Arrangement or contemplated by the Merger Agreement;
(c) upon the request or direction of Alamos, execute a proxy in respect of any resolution referred to in Section 3(b), and have all of its Subject Securities counted or not counted (as directed by Alamos) as part of a quorum in connection with any meeting of securityholders of AuRico relating to matters set forth in Section 3(b);
(d) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolution;
(e) not, without the prior written consent of AlamosAgnico, sell, transfer, assign, pledge, encumber hypothecate, encumber, grant a security interest in, gift or otherwise dispose ofof any Subject Securities, or enter into any agreement agreement, arrangement or understanding relating in connection with any of the foregoing (whether by actual disposition or effective economic disposition due to cash settlement or otherwise), other than (i) pursuant to the sale, transfer, assignment, pledge, encumbrance or other disposition of, the Subject Securities Arrangement or any interest therein (other than as transactions contemplated herein)by the Merger Agreement, provided, however, that nothing contained herein shall prohibit or permit any Affiliate of the Securityholder from exercising to do any Options of the foregoing, and (ii) with respect to the sale of a portion of any Shares issued upon vesting and exercise or settling settlement of the Options, PSUs and RSUs held by the Securityholder that vest prior to the completion of the Arrangement solely in order to satisfy any PSUs, RSUs or DSUs for cash and/or common shares of AuRico, as applicable (it being understood tax liabilities that such Securities will be voted arise in accordance with Section 3(a))connection therewith;
(f) not, except as required pursuant to this Agreement, grant or agree to grant any proxy proxy, power of attorney or other right to vote the Subject Securities, or deposit any of the Subject Securities or enter into any voting trust or enter into any vote pooling agreement or voting arrangement or enter into or subject any of the such Subject Securities to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting voting, calling of meetings of Xxxxxxxx Shareholders, the tendering thereof, or tendering thereof the granting of consents or revoke approvals of any proxy granted pursuant kind with respect to this Agreementany Subject Securities;
(g) not exercise any rights of dissent or appraisal in respect of any resolution approving the Proposed Transaction Arrangement (including the Arrangement Resolution) or any aspect thereof or matter related theretoto the transactions contemplated by the Merger Agreement, and not exercise any other securityholder rights or remedies or bring or threaten to bring any suit or proceeding available at common law or pursuant to applicable securities, corporate or securities law or other legislation Law or not take any action that is reasonably likely to in any manner impede, interfere with, delay, postpone, hinder, prevent, frustrate, interfere with or challenge the Proposed TransactionArrangement or any transaction contemplated by the Merger Agreement;
(h) not, subject to Section 7without the prior written consent of Agnico, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectly:
(i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, permitting any visit to any facilities or entering into any form of agreement, arrangement or understanding) any inquiries or proposals, whether publicly or otherwise, regarding an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(ii) enter into, engage, continue or participate in any negotiations or discussions regarding, or provide any non-public information with respect to AuRico or any of its subsidiaries, or offer or provide access to the business, properties, assets, books or records of AuRico or any of its subsidiaries or otherwise cooperate in any way with, any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in the requisition of any meeting of any of the securityholders of AuRico Xxxxxxxx Shareholders for the purpose of considering any resolution; or
(iv) solicit resolution which may reasonably be expected to prevent, delay, frustrate or arrange or provide assistance to any other person to arrange for interfere with, the solicitation of, proxies relating to or purchases of or offers to sell common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico for the purpose of influencing the voting of common shares of AuRico or affecting the control of AuRico, other than, in the case of proxy solicitation, in support completion of the Proposed TransactionArrangement or any transaction or matter related to the Arrangement or contemplated by the Merger Agreement;
(i) promptly notify Alamos upon not make any public statement or take any other action of any kind which may reasonably be expected to prevent, delay, frustrate or interfere with, the completion of the Arrangement or any transaction or matter related to the Arrangement or contemplated by the Merger Agreement;
(j) in the event that Agnico (or any of undersigned’s representations or warranties contained in this Agreement becoming untrue or incorrect in any material respect prior its Affiliates) undertakes an alternative transaction to the termination Arrangement (whether in form or substance) involving Xxxxxxxx that results in holders of Shares receiving consideration that is no less favourable than the consideration offered pursuant to the Arrangement, reasonably cooperate to facilitate the objectives of Agnico and Xxxxxxxx in respect of such alternative transaction; and
(k) not do indirectly that which it may not do directly in respect of the restrictions on its rights with respect to the Securityholder’s Subject Securities pursuant to this Agreement. The Securityholder acknowledges and agrees that any Options, PSUs, RSUs and DSUs held by him or her, to the extent not exercised or settled, shall be treated in accordance with the Arrangement and he or she shall take all steps required of him or her to give effect to such treatment.
Appears in 1 contract
Samples: Support and Voting Agreement (Agnico Eagle Mines LTD)
Covenants of the Securityholder. The Securityholder covenants and agrees that, until the earlier of: (i) the closing of the Proposed Transaction and (ii) the date this Agreement is terminated in accordance with its terms, the Securityholder shall:
(a) attend (either in person or by proxy) any AuRico Arrangement Richmont Meeting (including any adjournments and postponements thereof), and at the AuRico Arrangement Richmont Meeting, vote or cause to be voted all of: (i) the Shares; (ii) any Shares acquired by or issued to the Securityholder on or following the date hereof (including any common shares of AuRico Richmont issued upon the exercise, exercise of Options, PSUs, RSUs or DSUs); (iii) the Options, PSUs, 36566-2054 24046116.3 RSUs or DSUs; and (iv) any Options, PSUs, RSUs or DSUs acquired by or issued to the Securityholder on or following the date hereof, that are beneficially owned by, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted at the AuRico Arrangement Richmont Meeting (the “Subject Securities”) in favour of the Proposed Transaction and all matters related thereto;
(b) vote or cause to be voted (in person or by proxy) at any meeting of the securityholders of AuRico Richmont any Subject Securities against, or not tender or cause to be tendered any Subject Securities to:
(i) any corporate transaction, such as a merger, amalgamation, arrangement, rights offering, reorganization, recapitalization, or liquidation or liquidation, take-over bid, sale or transfer of a material amount of assets of AuRico Richmont or similar transaction involving AuRico Richmont or the common shares of AuRico Richmont other than the Proposed Transaction and any transaction related thereto;
(ii) the issuance of any securities of AuRico Richmont (other than pursuant to the exercise of Options or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
(iii) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, or adversely affect in any material respect the Proposed Transaction including, without limitation, any AuRico Acquisition Proposal; or
(iv) any action or agreement that would result in a breach of any representation, warranty, or covenant or other obligation of AuRico Richmont in the Arrangement Agreement;
(c) upon the request or direction of Alamos, execute a proxy in respect of any resolution referred to in Section 3(b), and have all of its Subject Securities counted or not counted (as directed by Alamos) as part of a quorum in connection with any meeting of securityholders of AuRico Richmont relating to matters set forth in Section 3(b);
(d) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolution;
(e) not, without the prior written consent of Alamos, sell, transfer, assign, pledge, encumber or otherwise dispose of, or enter into any agreement or understanding relating to the sale, transfer, assignment, pledge, encumbrance or other disposition of, the Subject Securities or any interest therein (other than as contemplated herein), provided, however, that nothing contained herein shall prohibit the Securityholder from exercising any Options or settling any PSUs, RSUs or DSUs for cash and/or common shares of AuRicoRichmont, as applicable (it being understood that such Subject Securities will be voted in accordance with Section 3(a));; 36566-2054 24046116.3
(f) not, except as required pursuant to this Agreement, grant or agree to grant any proxy or other right to vote the Subject Securities or enter into any voting trust or pooling agreement or arrangement in respect of the Subject Securities or enter into or subject any of the Subject Securities to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting or tendering thereof or revoke any proxy granted pursuant to this Agreement;
(g) not exercise any rights of dissent or appraisal in respect of any resolution approving the Proposed Transaction or any aspect thereof or matter related thereto, and not exercise any other securityholder rights or remedies available at common law or pursuant to applicable corporate or securities law or other legislation or not take any action that is reasonably likely to in any manner impede, interfere with, delay, postpone, hinder, prevent, or challenge the Proposed Transaction;
(h) not, subject to Section 7, not, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectly:
(i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, knowingly permitting any visit to facilities or properties of Richmont or any facilities of its Subsidiaries or entering into any form of agreement, arrangement or understanding) any inquiries inquiry, proposal, expression of interest or proposals, whether publicly offer that constitutes or otherwise, regarding that may reasonably be expected to lead an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(ii) enter intoparticipate, engagedirectly or indirectly, continue or participate in any discussions or negotiations or discussions regardingregarding any inquiry, or provide any non-public information with respect to AuRico or any proposal, expression of its subsidiaries, interest or offer that constitutes or provide access that may reasonably be expected to lead to an Acquisition Proposal (provided that, if the businessSecurityholder is a director or officer of Richmont, propertiesthe Securityholder may, assetsin such capacity, books or records advise any person making an unsolicited Acquisition Proposal that such Acquisition Proposal does not constitute a Richmont Superior Proposal if the Richmont Board has so determined in compliance with Article 6 of AuRico or any of its subsidiaries the Arrangement Agreement) or otherwise cooperate in with or assist any way with, effort or attempt to make any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in the requisition of any meeting of the securityholders of AuRico Richmont for the purpose of considering any resolution; or
(iv) solicit or arrange (or provide assistance to any other person to arrange arrange) for the solicitation of, of proxies relating to to, or purchases of or offers to sell sell, common shares of AuRico Richmont or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico Richmont, or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico Richmont or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico Richmont for the purpose of influencing the voting of common shares of AuRico Richmont or affecting the control of AuRicoRichmont, other than, in the case of proxy solicitation, in support of the Proposed Transaction;; and 36566-2054 24046116.3
(i) promptly notify Alamos upon any of undersigned’s representations or warranties contained in this Agreement becoming untrue or incorrect in any material respect prior to the termination of this Agreement. The Securityholder acknowledges and agrees that any Options, PSUs, RSUs and DSUs held by him or her, to the extent not exercised or settled, shall be treated in accordance with the Arrangement and he or she shall take all steps required of him or her to give effect to such treatment.
Appears in 1 contract
Covenants of the Securityholder. The Securityholder hereby irrevocably covenants and agrees that, until the earlier of: (i) the closing of the Proposed Transaction and (ii) the date this Agreement is terminated in accordance with its terms, the Securityholder shallas follows:
(a) attend from the date of this Agreement until the termination of this Agreement in accordance with its terms (either the “Expiry Time”), the Securityholder shall not (A) sell, transfer, gift, assign, convey, pledge, hypothecate, encumber, grant any option with respect to, grant a security interest in person or otherwise dispose of any right or interest in (including by proxyway of deposit or tender under any take-over bid) (any such event, a “Transfer”) any AuRico Arrangement Meeting of the Subject Securities, other than the exercise, exchange, vesting or conversion of Sunward Options or Sunward DSUs in accordance with their terms for Sunward Shares, which Sunward Shares will become Subject Securities hereunder, or enter into any agreement, arrangement or understanding in connection therewith (including any adjournments and postponements thereofwhether by actual disposition or effective economic disposition due to cash settlement or otherwise), other than pursuant to the Arrangement, without having first obtained the prior written consent of the Purchaser, or (B) other than as set forth herein, grant any proxies or powers of attorney with respect to any Subject Securities, deposit any Subject Securities into a voting trust, in any way transfer any of the voting rights associated with any of the Subject Securities, or enter into a voting agreement, understanding or arrangement with respect to the right to vote, call meetings of Sunward Shareholders or give consents or approvals of any kind with respect to any Subject Securities. In furtherance of this Agreement, the Securityholder hereby authorizes the Purchaser, Sunward or their respective legal counsel to notify Sunward’s transfer agent that there is a stop transfer order with respect to all of the Subject Securities (and at that this Agreement places limits on the AuRico Arrangement Meetingvoting and transfer of such Subject Securities, as applicable), provided that if any such action involves costs to the Securityholder, those costs shall be paid or reimbursed by the Purchaser. The Parties agree that such stop transfer order shall be removed and shall be of no further force and effect upon the termination of this Agreement in accordance with Section 4.1;
(b) from time to time, until the Expiry Time, to vote (or cause to be voted voted) all of: the Subject Shares at any meeting of any of the securityholders of Sunward at which the Securityholder is entitled to vote, including without limitation the Sunward Meeting, and in any action by written consent of the securityholders of Sunward:
(i) the Shares; (ii) any Shares acquired by or issued to the Securityholder on or following the date hereof (including any common shares of AuRico issued upon the exercise, Options, PSUs, RSUs or DSUs); (iii) the Options, PSUs, RSUs or DSUs; and (iv) any Options, PSUs, RSUs or DSUs acquired by or issued to the Securityholder on or following the date hereof, that are beneficially owned by, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted at the AuRico Arrangement Meeting (the “Subject Securities”) in favour of the Proposed Transaction approval, consent, ratification and all matters related thereto;adoption of the Arrangement Resolution and the transactions contemplated by the Arrangement Agreement (and any actions required for the consummation of the transactions contemplated by the Arrangement Agreement); and
(bii) vote or cause to be voted other than the Arrangement, against (in person or by proxy) at any meeting of the securityholders of AuRico any Subject Securities against, or not tender or cause to be tendered any Subject Securities to:
(iA) any extraordinary corporate transaction, such as a including any merger, reorganization, consolidation, amalgamation, arrangement, rights offeringbusiness combination, reorganizationshare exchange, liquidation, dissolution, recapitalization, or liquidation similar transaction involving Sunward or take-over bidany of its subsidiaries; (B) any sale, sale lease or transfer of a material amount any significant part of the assets of AuRico Sunward or similar transaction any of its subsidiaries; (C) any Acquisition Proposal involving AuRico Sunward or any of its subsidiaries; (D) any material change in the capitalization of Sunward or any of its subsidiaries or the common shares corporate structure or constating documents of AuRico other than the Proposed Transaction and Sunward or any transaction related thereto;
of its subsidiaries; (ii) the issuance of any securities of AuRico (other than pursuant to the exercise of Options or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
(iiiE) any action that is would reasonably likely be expected to materially impede, delay, interfere with, delay, postpone, hinder, prevent, or adversely affect in any material respect discourage the Proposed Transaction including, without limitation, any AuRico Acquisition Proposaltransactions contemplated by the Arrangement Agreement; or
and (ivF) any action or agreement that would result in a breach of any representationcovenant, warranty, representation or covenant warranty or any other obligation or agreement of AuRico in Sunward under the Arrangement Agreement; in connection with the foregoing, subject to this Section 3.1(b), the Securityholder shall deposit an irrevocable proxy, duly completed and executed in respect of all of the Subject Shares at least five (5) business days prior to the Sunward Meeting, voting all such Subject Shares in favour of the Arrangement Resolution and otherwise in the manner described in this Section 3.1(b) . Neither the Securityholder nor any Person acting on his, her or its behalf will take any action to withdraw, amend or invalidate any proxy deposited by the Securityholder pursuant to this Agreement, notwithstanding any statutory or other rights which the Securityholder might have unless this Agreement is terminated in accordance with Section 4.1;
(c) upon until the request or direction of AlamosExpiry Time, execute a proxy in respect of any resolution referred to in Section 3(b), and have all of its Subject Securities counted or not counted (as directed by Alamos) as part of a quorum in connection with any meeting of securityholders of AuRico relating to matters set forth in Section 3(b);
(d) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolution;
(e) not, without the prior written consent of Alamosthe Purchaser, sellrequisition or join in the requisition of any meeting of any of the securityholders of Sunward for the purpose of considering any resolution;
(d) from time to time, transferuntil the Expiry Time, assignwhen any meeting of Sunward securityholders is held, pledge, encumber to appear at such meeting or otherwise dispose ofcause the applicable Subject Securities to be counted as present thereat for the purpose of establishing a quorum;
(e) until the Expiry Time, neither the Securityholder nor any of his, her or its Representatives will, directly or indirectly: (A) solicit, initiate, encourage or otherwise facilitate (including by way of entering into any agreement, arrangement or understanding) inquiries, submissions of proposals or offers from, or enter into provide information to, any agreement other Person, entity or understanding relating to the sale, transfer, assignment, pledge, encumbrance or other disposition of, the Subject Securities or any interest therein group (other than as contemplated herein)the Purchaser) relating to any Acquisition Proposal or potential Acquisition Proposal, provided(B) participate in any discussions or negotiations regarding any Acquisition Proposal, howeveror (C) accept, that nothing contained herein enter into or endorse, or publicly propose to accept or enter into, any letter of intent, agreement, arrangement or understanding related to any Acquisition Proposal. Nothing in this Section 3.1(e) shall prohibit prevent any shareholder, director or officer of the Securityholder Securityholder, if applicable, who is also a director or officer of Sunward from exercising any Options fulfilling his or settling any PSUsher fiduciary obligations, RSUs or DSUs for cash and/or common shares of AuRico, as applicable (it being understood provided that such Securities will be voted act or thing is permitted by and is done in accordance strict compliance with Section 3(a))the terms of the Arrangement Agreement;
(f) notto:
(i) immediately cease and cause to be terminated any and all solicitations, except as required pursuant encouragements, existing discussions and negotiations, if any, with any Person or group or any agent or representative of such Person or group with respect to this Agreementany Acquisition Proposal or potential Acquisition Proposal; and
(ii) immediately (and in any event within 48 hours following receipt) notify the Purchaser of any Acquisition Proposal or inquiry in respect of a potential Acquisition Proposal of which the Securityholder or, grant or agree to grant any proxy or other right to vote the Subject Securities or enter into any voting trust or pooling agreement or arrangement or enter into or subject knowledge of the Securityholder, any of the Subject Securities shareholders, directors or officers of the Securityholder, if applicable, becomes aware. Such notification shall be made orally and in writing and shall include, to any other agreementthe extent known to the Securityholder, arrangementthe identity of the Person making such Acquisition Proposal or inquiry and a description of the material terms and conditions thereof, understanding or commitment, formal or informal, together with respect to or a copy of all documentation relating to such Acquisition Proposal or inquiry; provided however that such notification shall not be required if Sunward has already notified the voting or tendering thereof or revoke any proxy granted pursuant to this Purchaser in the manner contemplated by the Arrangement Agreement;
(g) not exercise to waive any rights of appraisal or rights of dissent or appraisal in respect of that the Securityholder may have arising from the transactions contemplated by the Arrangement Agreement;
(h) until the Expiry Time, to not make any resolution approving statements which would reasonably be construed as being against the Proposed Transaction transactions contemplated by the Arrangement Agreement or any aspect thereof and to not bring, or matter related theretothreaten to bring, any suit or proceeding for the purpose of, or which has the effect of, directly or indirectly, stopping, preventing, impeding, delaying or varying such transactions or any aspect thereof;
(i) to promptly notify the Purchaser of any acquisitions by the Securityholder or any of his, her or its affiliates of any securities of Sunward, if any, after the date hereof, which, for greater certainty, shall include any Sunward Options and Sunward DSUs and any Sunward Shares issuable upon the exercise, conversion or vesting, as applicable, of any Sunward Options or Sunward DSUs, owned or controlled by the Securityholder which may be exercised, converted into or exchanged for Sunward Shares. Any such securities shall be subject to the terms of this Agreement as though they were Subject Securities owned by the Securityholder on the date hereof;
(j) until the Expiry Time, not to (i) exercise any other securityholder rights or remedies available at common law or pursuant to applicable corporate securities legislation; or securities law or other legislation or not (ii) take any other action that is of any kind, in each case which might reasonably be regarded as likely to in any manner impede, interfere with, delay, postpone, hinder, preventreduce the success of, or challenge delay or interfere with the Proposed Transactioncompletion of, the transactions contemplated by the Arrangement Agreement;
(hk) not, subject to Section 7, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectlySecurityholder hereby consents to:
(i) solicitdetails of this Agreement being set out in any information circular and court documents produced by Sunward, assist, initiate, knowingly encourage the Purchaser or otherwise facilitate (including any of their respective affiliates in connection with the transactions contemplated by way of furnishing information, permitting any visit to any facilities or entering into any form of agreement, arrangement or understanding) any inquiries or proposals, whether publicly or otherwise, regarding an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;this Agreement and the Arrangement Agreement; and
(ii) enter intothis Agreement being made publicly available, engageincluding by filing on SEDAR;
(l) except as required by applicable Law or applicable stock exchange requirements, continue not to make any public announcement or participate in any negotiations or discussions regarding, or provide any non-public information statement with respect to AuRico the transactions contemplated herein or any of its subsidiaries, or offer or provide access pursuant to the business, properties, assets, books or records of AuRico or any of its subsidiaries or otherwise cooperate in any way with, any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in Arrangement Agreement without the requisition of any meeting prior written approval of the securityholders of AuRico for the purpose of considering any resolution; or
(iv) solicit or arrange or provide assistance to any other person to arrange for the solicitation of, proxies relating to or purchases of or offers to sell common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico for the purpose of influencing the voting of common shares of AuRico or affecting the control of AuRico, other thanPurchaser and, in the case of proxy solicitationany such public announcement or statement is required by applicable Law or applicable stock exchange requirements, to consult with the Purchaser and provide the Purchaser a reasonable opportunity to review and comment on any such public announcement or statement, and give reasonable consideration to any comments made by the Purchaser and its legal counsel; and
(m) other than pursuant to and in support compliance with Section 7.2 of the Proposed Transaction;
(i) promptly notify Alamos upon Arrangement Agreement, to not enter into any of undersigned’s representations agreement or warranties understanding or make any commitment with any Person that would violate any provision or agreement contained in this Agreement becoming untrue or incorrect in any material respect prior to the termination of this Agreement. The Securityholder acknowledges and agrees that any Options, PSUs, RSUs and DSUs held by him or her, to the extent not exercised or settled, shall be treated in accordance with the Arrangement and he or she shall take all steps required of him or her to give effect to such treatment.
Appears in 1 contract
Covenants of the Securityholder. (a) The Securityholder hereby covenants and irrevocably agrees that, until in favor of Mercer that between the date of this Agreement and the earlier of: (i) the closing date of the Proposed Transaction and (ii) the date termination of this Agreement is terminated in accordance with its terms, the Securityholder shall:
(a) attend (either in person or by proxy) any AuRico Arrangement Meeting (including any adjournments and postponements thereof), and at the AuRico Arrangement Meeting, vote or cause to be voted all of: (i) the Shares; (ii) any Shares acquired by or issued to the Securityholder on or following completion of the date hereof (including any common shares of AuRico issued upon the exercise, Options, PSUs, RSUs or DSUs)Mercer Meeting; (iii) the Options, PSUs, RSUs or DSUsclosing of the Fibrek Transaction; (iv) the date Mercer advises it will not be proceeding with the Fibrek Transaction; and (ivv) any Options120 days from the date hereof (such earlier date being the “Expiry Date”), PSUs, RSUs or DSUs acquired by or issued to neither the Securityholder on nor its Affiliates shall grant any proxies or following the date hereofpowers of attorney, that are beneficially owned bydeposit any Securityholder’s Shares into a voting trust or enter into a voting agreement, understanding or over which control or direction is exercised by, the Securityholder and which are entitled arrangement with respect to be voted at the AuRico Arrangement Meeting (the “Subject Securities”) in favour any of the Proposed Transaction and all matters related thereto;Securityholder’s Shares.
(b) vote or cause Subject to be voted (in person or by proxySection 3.1(c) at any meeting of below, the securityholders of AuRico any Subject Securities againstSecurityholder hereby covenants and agrees, or not tender or cause from time to be tendered any Subject Securities totime, until the Expiry Date:
(i) to vote (or cause to be voted) all the Securityholder’s Shares at the Mercer Meeting (including any corporate transactionand all votes by class) in favor of the approval, such as a mergerconsent, amalgamation, arrangement, rights offering, reorganization, recapitalization, or liquidation or take-over bid, sale or transfer ratification and adoption of a material amount of assets of AuRico or similar transaction involving AuRico or the common shares of AuRico other than the Proposed Transaction Mercer Resolutions (and any transaction related thereto;
(ii) the issuance of any securities of AuRico (other than pursuant to the exercise of Options or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
(iii) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, or adversely affect actions required in any material respect the Proposed Transaction including, without limitation, any AuRico Acquisition Proposal; or
(iv) any action or agreement that would result in a breach of any representation, warranty, or covenant or other obligation of AuRico in the Arrangement Agreement;
(c) upon furtherance thereof). Upon the request or direction of AlamosMercer, the Securityholder shall promptly execute and deliver a irrevocable proxy in favor of Mercer or its order in respect of any resolution referred the Mercer Resolutions (and the Securityholder shall deliver such proxy at least 5 business days prior to in Section 3(bthe Meeting Date), and shall have all of its Subject Securities the relevant Securityholder’s Shares counted or not counted (as directed by Alamos) as part of a quorum in connection with any such meeting of securityholders of AuRico relating to matters set forth in this Section 3(b3.1(b);
(dii) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolution;
(e) not, without the prior written consent of AlamosMercer, sell, transfer, assign, pledge, encumber or otherwise dispose of, or enter into any agreement or understanding relating to the sale, transfer, assignment, pledge, encumbrance or other disposition of, the Subject Securities or any interest therein (other than as contemplated herein), provided, however, that nothing contained herein shall prohibit the Securityholder from exercising any Options or settling any PSUs, RSUs or DSUs for cash and/or common shares of AuRico, as applicable (it being understood that such Securities will be voted in accordance with Section 3(a));
(f) not, except as required pursuant to this Agreement, grant or agree to grant any proxy or other right to vote the Subject Securities or enter into any voting trust or pooling agreement or arrangement or enter into or subject any of the Subject Securities to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting or tendering thereof or revoke any proxy granted pursuant to this Agreement;
(g) not exercise any rights of dissent or appraisal in respect of any resolution approving the Proposed Transaction or any aspect thereof or matter related thereto, and not exercise any other securityholder rights or remedies available at common law or pursuant to applicable corporate or securities law or other legislation or not take any action that is reasonably likely to in any manner impede, interfere with, delay, postpone, hinder, prevent, or challenge the Proposed Transaction;
(h) not, subject to Section 7, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectly:
(i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, permitting any visit to any facilities or entering into any form of agreement, arrangement or understanding) any inquiries or proposals, whether publicly or otherwise, regarding an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(ii) enter into, engage, continue or participate in any negotiations or discussions regarding, or provide any non-public information with respect to AuRico or any of its subsidiaries, or offer or provide access to the business, properties, assets, books or records of AuRico or any of its subsidiaries or otherwise cooperate in any way with, any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in the requisition of any meeting of the securityholders of AuRico Mercer for the purpose of considering any resolution; orother resolution at the Mercer Meeting;
(iii) to not make any statements against the Fibrek Transaction or the Mercer Resolutions or any aspect of them and to not bring, or threaten to bring, any suit or proceeding for the purpose of, or which has the effect of, directly or indirectly, stopping, preventing, impeding or varying such transactions or any aspect thereof;
(iv) solicit or arrange or provide assistance to any other person to arrange for the solicitation ofnot sell, proxies relating to or purchases assign, dispose of or offers to sell common shares of AuRico otherwise transfer howsoever (directly or securities convertible into indirectly) the Securityholder’s Shares (or exchangeable or exercisable for, or representing, common shares of AuRico or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico for the purpose of influencing the voting of common shares of AuRico or affecting the control of AuRico, other than, in the case of proxy solicitation, in support of the Proposed Transactioninterest therein);
(v) to not do indirectly that which it may not do directly in respect of the restrictions on its rights with respect to the Securityholder’s Shares pursuant to this section 3.1; and
(vi) if any of the Securityholder’s Shares are registered in the name of a person other than the Securityholder or otherwise held other than personally, the Securityholder will cause the registered owner of such securities to perform all covenants of the Securityholder under this Agreement as if the Securityholder.
(c) In connection with the Fibrek Transaction: (i) Mercer shall arrange a $30,000,000 credit facility from Investissement Quebec and a $40,000,000 syndicated credit facility from Fonds de Solidarite FIQ (and/or from the Quebec Government or related bodies or funds or investee companies); and (ii) the Transaction Price shall not exceed the amount specified by the Securityholder’s investment analyst to Mercer on even date hereof.
(d) The Securityholder covenants and agrees to promptly notify Alamos upon Mercer of the number of any of undersigned’s representations additional Mercer Shares which the Securityholder acquires beneficial ownership or warranties contained in this Agreement becoming untrue control, directly or incorrect in any material respect indirectly, if any, after the date hereof and prior to the termination Expiry Date. Any such Mercer Shares shall be included as part of the Securityholder’s Shares and subject to the terms of this Agreement. .
(e) The Securityholder acknowledges and agrees that hereby irrevocably consents to: (i) details of this Agreement being set out in any Options, PSUs, RSUs and DSUs held proxy or registration statement or circular produced by him or her, to the extent not exercised or settled, shall be treated Mercer in accordance connection with the Arrangement Mercer Meeting and he the Fibrek Transaction; and (ii) this Agreement being made publicly available.
(f) The Securityholder agrees that, until the Expiry Date, the Securityholder will not take any other action of any kind which might reasonably be regarded as likely to reduce the success of, or she shall take all steps required delay or interfere with the approval of him or her to give effect to such treatmentthe Mercer Resolutions at the Mercer Meeting.
Appears in 1 contract
Samples: Voting Support Agreement (Mercer International Inc.)
Covenants of the Securityholder. (a) The Securityholder hereby covenants and irrevocably agrees that, until in favor of Xxxxxx that between the date of this Agreement and the earlier of: (i) the closing date of the Proposed Transaction and (ii) the date termination of this Agreement is terminated in accordance with its terms, the Securityholder shall:
(a) attend (either in person or by proxy) any AuRico Arrangement Meeting (including any adjournments and postponements thereof), and at the AuRico Arrangement Meeting, vote or cause to be voted all of: (i) the Shares; (ii) any Shares acquired by or issued to the Securityholder on or following completion of the date hereof (including any common shares of AuRico issued upon the exercise, Options, PSUs, RSUs or DSUs)Xxxxxx Meeting; (iii) the Options, PSUs, RSUs or DSUsclosing of the Fibrek Transaction; (iv) the date Xxxxxx advises it will not be proceeding with the Fibrek Transaction; and (ivv) any Options120 days from the date hereof (such earlier date being the “Expiry Date”), PSUs, RSUs or DSUs acquired by or issued to neither the Securityholder on nor its Affiliates shall grant any proxies or following the date hereofpowers of attorney, that are beneficially owned bydeposit any Securityholder’s Shares into a voting trust or enter into a voting agreement, understanding or over which control or direction is exercised by, the Securityholder and which are entitled arrangement with respect to be voted at the AuRico Arrangement Meeting (the “Subject Securities”) in favour any of the Proposed Transaction and all matters related thereto;Securityholder’s Shares.
(b) vote or cause The Securityholder hereby covenants and agrees, from time to be voted (in person or by proxy) at any meeting of time, until the securityholders of AuRico any Subject Securities against, or not tender or cause to be tendered any Subject Securities toExpiry Date:
(i) to vote (or cause to be voted) all the Securityholder’s Shares at the Xxxxxx Meeting (including any corporate transactionand all votes by class) in favor of the approval, such as a mergerconsent, amalgamation, arrangement, rights offering, reorganization, recapitalization, or liquidation or take-over bid, sale or transfer ratification and adoption of a material amount of assets of AuRico or similar transaction involving AuRico or the common shares of AuRico other than the Proposed Transaction Xxxxxx Resolutions (and any transaction related thereto;
(ii) the issuance of any securities of AuRico (other than pursuant to the exercise of Options or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
(iii) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, or adversely affect actions required in any material respect the Proposed Transaction including, without limitation, any AuRico Acquisition Proposal; or
(iv) any action or agreement that would result in a breach of any representation, warranty, or covenant or other obligation of AuRico in the Arrangement Agreement;
(c) upon furtherance thereof). Upon the request or direction of AlamosXxxxxx, the Securityholder shall promptly execute and deliver a irrevocable proxy in favor of Xxxxxx or its order in respect of any resolution referred the Xxxxxx Resolutions (and the Securityholder shall deliver such proxy at least 5 business days prior to in Section 3(bthe Meeting Date), and shall have all of its Subject Securities the relevant Securityholder’s Shares counted or not counted (as directed by Alamos) as part of a quorum in connection with any such meeting of securityholders of AuRico relating to matters set forth in this Section 3(b3.1(b);
(dii) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolution;
(e) not, without the prior written consent of AlamosXxxxxx, sell, transfer, assign, pledge, encumber or otherwise dispose of, or enter into any agreement or understanding relating to the sale, transfer, assignment, pledge, encumbrance or other disposition of, the Subject Securities or any interest therein (other than as contemplated herein), provided, however, that nothing contained herein shall prohibit the Securityholder from exercising any Options or settling any PSUs, RSUs or DSUs for cash and/or common shares of AuRico, as applicable (it being understood that such Securities will be voted in accordance with Section 3(a));
(f) not, except as required pursuant to this Agreement, grant or agree to grant any proxy or other right to vote the Subject Securities or enter into any voting trust or pooling agreement or arrangement or enter into or subject any of the Subject Securities to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting or tendering thereof or revoke any proxy granted pursuant to this Agreement;
(g) not exercise any rights of dissent or appraisal in respect of any resolution approving the Proposed Transaction or any aspect thereof or matter related thereto, and not exercise any other securityholder rights or remedies available at common law or pursuant to applicable corporate or securities law or other legislation or not take any action that is reasonably likely to in any manner impede, interfere with, delay, postpone, hinder, prevent, or challenge the Proposed Transaction;
(h) not, subject to Section 7, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectly:
(i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, permitting any visit to any facilities or entering into any form of agreement, arrangement or understanding) any inquiries or proposals, whether publicly or otherwise, regarding an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(ii) enter into, engage, continue or participate in any negotiations or discussions regarding, or provide any non-public information with respect to AuRico or any of its subsidiaries, or offer or provide access to the business, properties, assets, books or records of AuRico or any of its subsidiaries or otherwise cooperate in any way with, any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in the requisition of any meeting of the securityholders of AuRico Xxxxxx for the purpose of considering any resolution; orother resolution at the Xxxxxx Meeting;
(iii) to not make any statements against the Fibrek Transaction or the Xxxxxx Resolutions or any aspect of them and to not bring, or threaten to bring, any suit or proceeding for the purpose of, or which has the effect of, directly or indirectly, stopping, preventing, impeding or varying such transactions or any aspect thereof;
(iv) solicit or arrange or provide assistance to any other person to arrange for the solicitation ofnot sell, proxies relating to or purchases assign, dispose of or offers to sell common shares of AuRico otherwise transfer howsoever (directly or securities convertible into indirectly) the Securityholder’s Shares (or exchangeable or exercisable for, or representing, common shares of AuRico or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico for the purpose of influencing the voting of common shares of AuRico or affecting the control of AuRico, other than, in the case of proxy solicitation, in support of the Proposed Transactioninterest therein);
(iv) to not do indirectly that which it may not do directly in respect of the restrictions on its rights with respect to the Securityholder’s Shares pursuant to this section 3.1; and
(vi) if any of the Securityholder’s Shares are registered in the name of a person other than the Securityholder or otherwise held other than personally, the Securityholder will cause the registered owner of such securities to perform all covenants of the Securityholder under this Agreement as if the Securityholder.
(c) The Securityholder covenants and agrees to promptly notify Alamos upon Xxxxxx of the number of any of undersigned’s representations additional Xxxxxx Shares which the Securityholder acquires beneficial ownership or warranties contained in this Agreement becoming untrue control, directly or incorrect in any material respect indirectly, if any, after the date hereof and prior to the termination Expiry Date. Any such Xxxxxx Shares shall be included as part of the Securityholder’s Shares and subject to the terms of this Agreement. The Securityholder acknowledges and agrees that any Options, PSUs, RSUs and DSUs held by him or her, to the extent not exercised or settled, shall be treated in accordance with the Arrangement and he or she shall take all steps required of him or her to give effect to such treatment.
Appears in 1 contract
Samples: Voting Support Agreement (Mercer International Inc.)
Covenants of the Securityholder. (a) The Securityholder covenants hereby irrevocably and agrees thatunconditionally covenants, undertakes and agrees, from time to time, until the earlier of: of (i) the closing of Effective Time (as such term is defined under the Proposed Transaction Business Combination Agreement), and (ii) the date termination of this Agreement is terminated in accordance with its terms, the Securityholder shallSection 5.1 hereof:
(ai) attend (either in person or by proxy) any AuRico Arrangement Meeting (including any adjournments and postponements thereof), and at the AuRico Arrangement Meeting, vote or to cause to be voted counted as present for purposes of establishing quorum all of: (i) the Shares; (ii) Company Securities, at each applicable Company Securityholder Meeting, or at any Shares acquired by adjournment thereof or issued in any other circumstances upon which a vote, consent or other approval with respect to the Securityholder on or following Transactions contemplated by the date hereof Business Combination Agreement (including any common shares of AuRico issued upon the exercise, Options, PSUs, RSUs or DSUs); (iiiMerger) the Options, PSUs, RSUs or DSUs; and (iv) any Options, PSUs, RSUs or DSUs acquired by or issued to the Securityholder on or following the date hereof, that are beneficially owned byis sought, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted at the AuRico Arrangement Meeting (the “Subject Securities”) in favour any action by written consent of the Proposed Transaction securityholders of the Company, and all matters related thereto;
(b) to vote or cause to be voted (in person or person, by proxy) at any meeting , by action by written consent, as applicable, or as otherwise may be required under the articles of the securityholders Company) all the Company Securities, in favour of AuRico any Subject Securities againstthe approval, or not tender or cause to be tendered any Subject Securities to:
consent, ratification and adoption of the Company Transaction Proposals, the Company Warrant Termination Proposal, the Company Class A Preferred Conversion Proposal, the Company Class B Preferred Conversion Proposal, the Company Convertible Bond Conversion, the Agreement of Merger Proposal, the Surviving Entity Director Proposal and the Transactions contemplated by the Business Combination Agreement (i) any corporate transaction, such as a merger, amalgamation, arrangement, rights offering, reorganization, recapitalization, or liquidation or take-over bid, sale or transfer of a material amount of assets of AuRico or similar transaction involving AuRico or including the common shares of AuRico other than the Proposed Transaction and any transaction related theretoMerger);
(ii) to cause to be counted as present for purposes of establishing quorum all the issuance Company Securities, at any meeting of any securities of AuRico the securityholders of the Company at which the Securityholder is entitled to vote, or at any adjournment thereof or in any other circumstances upon which a vote, consent or other approval, with respect to matters contemplated by clause (other than pursuant A) or clause (B) of this Section 4.1(a)(ii), is sought, or in any action by written consent of the securityholders of the Company, and to vote or cause to be voted (in person, by proxy or by action by written consent, as applicable, or as otherwise may be required under the exercise articles of Options or the settlement of PSUsCompany) all the Company Securities, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
in opposition to: (iiiA) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, or adversely affect in any material respect the Proposed Transaction including, without limitation, any AuRico Company Acquisition Proposal; or
and (ivB) any other matter, action or agreement that proposal which would reasonably be expected to result in a breach of any representation, warranty, or covenant or other obligation of AuRico the Company under the Business Combination Agreement if such breach requires securityholder approval and is communicated as being such a breach in a notice in writing delivered by SPAC to the Securityholder; provided that, in the Arrangement Agreementcase of either clause (A) or clause (B) of this Section 4.1(a)(ii), the Business Combination Agreement shall not have been amended or modified without the Securityholder’s written consent to decrease, or change the form of, the consideration payable to Company Securityholders;
(ciii) upon except as otherwise expressly contemplated by the request Business Combination Agreement or direction of Alamos, execute a proxy in respect of any resolution referred to in Section 3(b), and have all of its Subject Securities counted or not counted (as directed by Alamos) as part of a quorum in connection with any meeting of securityholders of AuRico relating to matters set forth in Section 3(b);
(d) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolution;
(e) not, without the prior written consent of AlamosSPAC (such consent to be given or withheld in its sole discretion, sellsubject to such consent not to be unreasonably withheld or delayed), transfer, assign, pledge, encumber or otherwise dispose ofnot to (A) Transfer any Company Securities, or any right or interest therein (without prejudice, however, to any Transfer of Company Shares by the Securityholder for the benefit of (a) any other holder of Company Shares or (b) any existing or future Affiliate of such other holder of Company Shares or (c) any Person Controlling such existing or future Affiliate of such other holder of Company Shares, that may be carried out without the the prior written consent of SPAC), (B) enter into (1) any option, warrant, purchase right, or other Contract that could (either alone or in connection with one or more events, developments or events (including the satisfaction or waiver of any conditions precedent)) require such Securityholder to Transfer any Company Securities, or any right or interest therein, or (2) any voting trust, proxy or other Contract with respect to the voting or Transfer of any Company Securities, or any right or interest therein, in a manner inconsistent with the covenants and obligations of this Agreement, or (C) enter into any Contract to take, or cause to be taken, any of the actions set forth in clauses (A) or (B); provided, however, that the foregoing shall not apply to any Transfer (1) to any Affiliate of such Securityholder; (2) in the case of an individual, by gift to a member of one of the individual’s immediate family, to a trust, the beneficiary of which is a member of the individual’s immediate family or an Affiliate of such individual; (3) in the case of an individual, by virtue of laws of descent and distribution upon death of the individual; (4) in the case of an individual, pursuant to a qualified domestic relations order; or (5) by virtue of the Securityholder’s organizational documents upon liquidation or dissolution of the Securityholder (any transferee of the type set forth in clauses (1) through (5) a “Permitted Transferee”); provided, that the transferring Securityholder shall, and shall cause any Permitted Transferee, to enter into a written agreement in form and substance reasonably satisfactory to SPAC, agreeing to be bound by this Agreement (which will include, for the avoidance of doubt, all of the covenants, agreements and obligations of the transferring Securityholder hereunder and the making of all applicable representations and warranties of the transferring Securityholder set forth in Article 2 with respect to such transferee and his, her or understanding relating its Company Securities, or any right or interest therein, received upon such Transfer, as applicable) prior and as a condition to the occurrence of such Transfer. For purposes of this Agreement, “Transfer” means any, direct or indirect, sale, transfer, assignment, pledge, encumbrance or other disposition ofmortgage, the Subject Securities or any interest therein (other than as contemplated herein)exchange, provided, however, that nothing contained herein shall prohibit the Securityholder from exercising any Options or settling any PSUs, RSUs or DSUs for cash and/or common shares of AuRico, as applicable (it being understood that such Securities will be voted in accordance with Section 3(a));
(f) not, except as required pursuant to this Agreementhypothecation, grant of a security interest or agree to grant any proxy encumbrance in or other right to vote the Subject Securities disposition of an interest (whether with or enter into any voting trust without consideration, whether voluntarily or pooling agreement involuntarily or arrangement or enter into or subject any by operation of the Subject Securities to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting or tendering thereof or revoke any proxy granted pursuant to this Agreement;
(g) not exercise any rights of dissent or appraisal in respect of any resolution approving the Proposed Transaction or any aspect thereof or matter related thereto, and not exercise any other securityholder rights or remedies available at common law or pursuant to applicable corporate or securities law or other legislation or not take any action that is reasonably likely to in any manner impede, interfere with, delay, postpone, hinder, prevent, or challenge the Proposed Transaction;
(h) not, subject to Section 7, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectly:
(i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, permitting any visit to any facilities or entering into any form of agreement, arrangement or understanding) any inquiries or proposals, whether publicly or otherwise, regarding an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(ii) enter into, engage, continue or participate in any negotiations or discussions regarding, or provide any non-public information with respect to AuRico or any of its subsidiaries, or offer or provide access to the business, properties, assets, books or records of AuRico or any of its subsidiaries or otherwise cooperate in any way with, any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in the requisition of any meeting of the securityholders of AuRico for the purpose of considering any resolution; or
(iv) solicit or arrange or provide assistance to any other person to arrange for the solicitation of, proxies relating to or purchases of or offers to sell common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico for the purpose of influencing the voting of common shares of AuRico or affecting the control of AuRico, other than, in the case of proxy solicitation, in support of the Proposed Transaction;
(i) promptly notify Alamos upon any of undersigned’s representations or warranties contained in this Agreement becoming untrue or incorrect in any material respect prior to the termination of this Agreement. The Securityholder acknowledges and agrees that any Options, PSUs, RSUs and DSUs held by him or her, to the extent not exercised or settled, shall be treated in accordance with the Arrangement and he or she shall take all steps required of him or her to give effect to such treatment).
Appears in 1 contract
Samples: Transaction Support Agreement (Genesis Growth Tech Acquisition Corp.)
Covenants of the Securityholder. 1.1 The Securityholder acknowledges and agrees that he, she or it:
(a) has received a copy of the Combination Agreement and, in particular, has been made aware of the provisions of Section 6.1 and Schedule F of the Combination Agreement; and
(b) will comply with the requirements of Section 6.1 and Schedule F of the Combination Agreement and, in particular, will not take any action which would, or would reasonably be expected to, cause EFI to be in breach of any of its obligations under such Section 6.1 and Schedule F, subject in each case to the other terms of the Combination Agreement and the terms of this Support Agreement.
1.2 The Securityholder hereby covenants and agrees thatagrees, from the date hereof until the earlier of: (i) the closing termination of the Proposed Transaction this Support Agreement pursuant to Article 3 hereof; and (ii) the date this Agreement is terminated Effective Time, except in accordance with its terms, the Securityholder shallterms of this Support Agreement:
(a) attend (either in person or by proxy) any AuRico Arrangement Meeting (including any adjournments and postponements thereof), and at the AuRico Arrangement Meeting, to irrevocably vote or cause to be voted all of: at the EFI Meeting (iincluding at any adjournment or postponement thereof) the Shares; (ii) any Subject Common Shares acquired by or issued to the Securityholder on or following the date hereof (including any common shares of AuRico issued upon the exercise, Options, PSUs, RSUs or DSUs); (iii) the Options, PSUs, RSUs or DSUs; and (iv) any Options, PSUs, RSUs or DSUs acquired by or issued to the Securityholder on or following the date hereof, that are beneficially owned by, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted at the AuRico Arrangement Meeting (the “Subject Securities”) in favour of the Proposed Transaction EFI Resolution and all other related matters related theretoor resolutions necessary or desirable to implement the Arrangement to be considered at the EFI Meeting;
(b) vote not to exercise any dissent rights or cause to be voted (in person or by proxy) at any meeting of the securityholders of AuRico any Subject Securities against, or not tender or cause to be tendered any Subject Securities to:
(i) any corporate transaction, such as a merger, amalgamation, arrangement, other rights offering, reorganization, recapitalization, or liquidation or take-over bid, sale or transfer of a material amount of assets of AuRico or similar transaction involving AuRico or the common shares of AuRico other than the Proposed Transaction and any transaction related thereto;
(ii) the issuance of any securities of AuRico (other than pursuant available to the exercise of Options or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
(iii) any action that is reasonably likely Securityholder to impede, interfere with, delay, postpone, hinder, prevent, upset or adversely affect in any material respect challenge the Proposed Transaction including, without limitation, any AuRico Acquisition Proposal; or
(iv) any action or agreement that would result in a breach of any representation, warranty, or covenant or other obligation of AuRico in the Arrangement AgreementArrangement;
(c) upon not to exercise any shareholder rights or remedies available at common law pursuant to applicable securities or other Laws to delay, hinder, upset or challenge the request or direction of Alamos, execute a proxy in respect of any resolution referred to in Section 3(b), and have all of its Subject Securities counted or not counted (as directed by Alamos) as part of a quorum in connection with any meeting of securityholders of AuRico relating to matters set forth in Section 3(b)Arrangement;
(d) for greater certaintynot to option, sell, assign, transfer, alienate, dispose of, gift, grant, pledge, create or permit an Encumbrance on, grant a security interest in connection with or otherwise convey any matter referred to in Section 3(b), consult with Alamos prior to exercising Subject Common Shares or any voting rights attached thereto or any other right or interest therein, or agree to its Subject Securities and exercise or procure do any of the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolutionforegoing;
(e) not, without the prior written consent of Alamos, sell, transfer, assign, pledge, encumber or otherwise dispose of, or enter into any agreement or understanding relating not to the sale, transfer, assignment, pledge, encumbrance or other disposition of, the Subject Securities or any interest therein (other than as contemplated herein), provided, however, that nothing contained herein shall prohibit the Securityholder from exercising any Options or settling any PSUs, RSUs or DSUs for cash and/or common shares of AuRico, as applicable (it being understood that such Securities will be voted in accordance with Section 3(a));
(f) not, except as required pursuant to this Agreement, grant or agree to grant any proxy or other right to vote the Subject Securities Common Shares, or enter into any voting trust or pooling agreement or arrangement or enter into or subject any of the such Subject Securities Common Shares to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting or tendering thereof or revoke any proxy granted pursuant thereof, other than in support of the EFI Resolution and other related matters to this Agreementbe considered at the EFI Meeting;
(gf) not exercise any rights of dissent or appraisal in respect of any resolution approving the Proposed Transaction or any aspect thereof or matter related thereto, and not exercise any other securityholder rights or remedies available at common law or pursuant to applicable corporate or securities law or other legislation or not take any action that is reasonably likely to in any manner impede, interfere with, delay, postpone, hinder, prevent, or challenge the Proposed Transaction;
(h) not, subject to Section 7, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectly:
(i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, permitting any visit to any facilities or entering into any form of agreement, arrangement or understanding) any inquiries or proposals, whether publicly or otherwise, regarding an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(ii) enter into, engage, continue or participate in any negotiations or discussions regarding, or provide any non-public information with respect to AuRico or any of its subsidiaries, or offer or provide access to the business, properties, assets, books or records of AuRico or any of its subsidiaries or otherwise cooperate in any way with, any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in the requisition of any meeting of the securityholders shareholders of AuRico EFI for the purpose of considering any resolution; or;
(ivg) not to, in any manner, directly or indirectly, including through any Representative, solicit, initiate, or knowingly encourage any inquiries, proposals, offers or public announcements (or the submission or initiation of any of the foregoing) from any person regarding any Superior Proposal, engage in any negotiations concerning, or provide any information to, or have any discussions with or otherwise cooperate with, any person relating to an Superior Proposal, or otherwise knowingly facilitate or knowingly encourage any effort or attempt to make or implement an Superior Proposal;
(h) not to solicit or arrange or provide assistance to any other person to arrange for the solicitation of, proxies relating to or purchases of or offers to sell common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico EFI Common Shares or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico EFI Common Shares for the purpose of influencing the voting of common shares of AuRico or affecting the control of AuRico, other than, in the case of proxy solicitation, in support of the Proposed TransactionEFI;
(i) promptly notify Alamos upon any of undersigned’s representations or warranties contained in this Agreement becoming untrue or incorrect in any material respect not to, except as required by applicable Laws, prior to the termination public announcement by EFI and Titan of the entering into of the Combination Agreement, directly or indirectly, disclose to any person (other than EFI, Titan and its financial and legal advisors) the existence of this Support Agreement or the terms and conditions of this Support Agreement. The , or the possibility of EFI and Titan entering into the Combination Agreement or any terms or conditions or other information concerning the Combination Agreement and the transactions contemplated therein;
(j) not to take any action of any kind, directly or indirectly, which might reasonably be regarded as likely to reduce the success of, or delay or interfere with the completion of the transactions contemplated by the Combination Agreement;
(k) to immediately cease, cause its Representatives to cease and cause to be terminated any existing solicitations, discussions or negotiations with any parties (other than with EFI or Titan or any Representative of EFI or Titan) with respect to any Superior Proposal or any potential Superior Proposal;
(l) to promptly notify EFI, at first orally and then in writing, of all Superior Proposals currently under consideration or of which the Securityholder acknowledges and agrees that is aware;
(m) to immediately notify EFI of any Optionsproposal, PSUsinquiry, RSUs and DSUs held by him offer or herrequest of which the Securityholder, to the extent knowledge of the Securityholder, any of its directors, officers, employees, representatives or agents becomes, directly or indirectly, aware: relating to an Superior Proposal or potential Superior Proposal; for discussions or negotiations in respect of an Superior Proposal or potential Superior Proposal; for non-public information relating to EFI; or any material amendments to the foregoing. Such notice shall include the identity of the person making such proposal, inquiry, offer or request, a description of the terms and conditions of, and the identity of the person making, such proposal, inquiry, offer or request and such other details of the proposal, inquiry, offer or request as EFI may reasonably request; and
(n) not exercised to take any action to encourage or settledassist any other person to do any of the prohibited acts referred to in the foregoing provisions of this Section 1.2.
1.3 Nothing in this Article 1 shall prevent a Securityholder who is a member of the board of directors of Titan or is a senior officer of Titan from engaging, in such Securityholder’s capacity as a director or senior officer of the Company, in discussions or negotiations with a person in response to an unsolicited bona fide Superior Proposal made in writing to the board of directors of Titan by such person (which Superior Proposal did not result from a breach of this Support Agreement or the Combination Agreement) in circumstances where Titan is permitted by section 4 of Schedule F of the Combination Agreement to engage in such discussions or negotiations. For greater certainty, the Securityholder acknowledges that this Section 1.3 shall be treated not affect such Securityholder’s obligation to vote the Subject Common Shares in favour of the Titan Resolution in accordance with the Arrangement terms and he or she shall take all steps required conditions of him or her to give effect to such treatmentthis Support Agreement.
Appears in 1 contract
Samples: Support Agreement (Energy Fuels Inc)
Covenants of the Securityholder. (a) The Securityholder hereby covenants and irrevocably agrees that, until in favor of Xxxxxx that between the date of this Agreement and the earlier of: (i) the closing date of the Proposed Transaction and (ii) the date termination of this Agreement is terminated in accordance with its terms, the Securityholder shall:
(a) attend (either in person or by proxy) any AuRico Arrangement Meeting (including any adjournments and postponements thereof), and at the AuRico Arrangement Meeting, vote or cause to be voted all of: (i) the Shares; (ii) any Shares acquired by or issued to the Securityholder on or following completion of the date hereof (including any common shares of AuRico issued upon the exercise, Options, PSUs, RSUs or DSUs)Xxxxxx Meeting; (iii) the Options, PSUs, RSUs or DSUsclosing of the Fibrek Transaction; (iv) the date Xxxxxx advises it will not be proceeding with the Fibrek Transaction; and (ivv) any Options120 days from the date hereof (such earlier date being the “Expiry Date”), PSUs, RSUs or DSUs acquired by or issued to neither the Securityholder on nor its Affiliates shall grant any proxies or following the date hereofpowers of attorney, that are beneficially owned bydeposit any Securityholder’s Shares into a voting trust or enter into a voting agreement, understanding or over which control or direction is exercised by, the Securityholder and which are entitled arrangement with respect to be voted at the AuRico Arrangement Meeting (the “Subject Securities”) in favour any of the Proposed Transaction and all matters related thereto;Securityholder’s Shares.
(b) vote or cause Subject to be voted (in person or by proxySection 3.1(c) at any meeting of below, the securityholders of AuRico any Subject Securities againstSecurityholder hereby covenants and agrees, or not tender or cause from time to be tendered any Subject Securities totime, until the Expiry Date:
(i) to vote (or cause to be voted) all the Securityholder’s Shares at the Xxxxxx Meeting (including any corporate transactionand all votes by class) in favor of the approval, such as a mergerconsent, amalgamation, arrangement, rights offering, reorganization, recapitalization, or liquidation or take-over bid, sale or transfer ratification and adoption of a material amount of assets of AuRico or similar transaction involving AuRico or the common shares of AuRico other than the Proposed Transaction Xxxxxx Resolutions (and any transaction related thereto;
(ii) the issuance of any securities of AuRico (other than pursuant to the exercise of Options or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
(iii) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, or adversely affect actions required in any material respect the Proposed Transaction including, without limitation, any AuRico Acquisition Proposal; or
(iv) any action or agreement that would result in a breach of any representation, warranty, or covenant or other obligation of AuRico in the Arrangement Agreement;
(c) upon furtherance thereof). Upon the request or direction of AlamosXxxxxx, the Securityholder shall promptly execute and deliver a irrevocable proxy in favor of Xxxxxx or its order in respect of any resolution referred the Xxxxxx Resolutions (and the Securityholder shall deliver such proxy at least 5 business days prior to in Section 3(bthe Meeting Date), and shall have all of its Subject Securities the relevant Securityholder’s Shares counted or not counted (as directed by Alamos) as part of a quorum in connection with any such meeting of securityholders of AuRico relating to matters set forth in this Section 3(b3.1(b);
(dii) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolution;
(e) not, without the prior written consent of AlamosXxxxxx, sell, transfer, assign, pledge, encumber or otherwise dispose of, or enter into any agreement or understanding relating to the sale, transfer, assignment, pledge, encumbrance or other disposition of, the Subject Securities or any interest therein (other than as contemplated herein), provided, however, that nothing contained herein shall prohibit the Securityholder from exercising any Options or settling any PSUs, RSUs or DSUs for cash and/or common shares of AuRico, as applicable (it being understood that such Securities will be voted in accordance with Section 3(a));
(f) not, except as required pursuant to this Agreement, grant or agree to grant any proxy or other right to vote the Subject Securities or enter into any voting trust or pooling agreement or arrangement or enter into or subject any of the Subject Securities to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting or tendering thereof or revoke any proxy granted pursuant to this Agreement;
(g) not exercise any rights of dissent or appraisal in respect of any resolution approving the Proposed Transaction or any aspect thereof or matter related thereto, and not exercise any other securityholder rights or remedies available at common law or pursuant to applicable corporate or securities law or other legislation or not take any action that is reasonably likely to in any manner impede, interfere with, delay, postpone, hinder, prevent, or challenge the Proposed Transaction;
(h) not, subject to Section 7, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectly:
(i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, permitting any visit to any facilities or entering into any form of agreement, arrangement or understanding) any inquiries or proposals, whether publicly or otherwise, regarding an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(ii) enter into, engage, continue or participate in any negotiations or discussions regarding, or provide any non-public information with respect to AuRico or any of its subsidiaries, or offer or provide access to the business, properties, assets, books or records of AuRico or any of its subsidiaries or otherwise cooperate in any way with, any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in the requisition of any meeting of the securityholders of AuRico Xxxxxx for the purpose of considering any resolution; orother resolution at the Xxxxxx Meeting;
(iii) to not make any statements against the Fibrek Transaction or the Xxxxxx Resolutions or any aspect of them and to not bring, or threaten to bring, any suit or proceeding for the purpose of, or which has the effect of, directly or indirectly, stopping, preventing, impeding or varying such transactions or any aspect thereof;
(iv) solicit or arrange or provide assistance to any other person to arrange for the solicitation ofnot sell, proxies relating to or purchases assign, dispose of or offers to sell common shares of AuRico otherwise transfer howsoever (directly or securities convertible into indirectly) the Securityholder’s Shares (or exchangeable or exercisable for, or representing, common shares of AuRico or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico for the purpose of influencing the voting of common shares of AuRico or affecting the control of AuRico, other than, in the case of proxy solicitation, in support of the Proposed Transactioninterest therein);
(iv) to not do indirectly that which it may not do directly in respect of the restrictions on its rights with respect to the Securityholder’s Shares pursuant to this section 3.1; and
(vi) if any of the Securityholder’s Shares are registered in the name of a person other than the Securityholder or otherwise held other than personally, the Securityholder will cause the registered owner of such securities to perform all covenants of the Securityholder under this Agreement as if the Securityholder.
(c) In connection with the Fibrek Transaction, the Transaction Price shall not exceed the maximum amount specified by the Securityholder to Xxxxxx or its counsel on even date hereof.
(d) The Securityholder covenants and agrees to promptly notify Alamos upon Xxxxxx of the number of any of undersigned’s representations additional Xxxxxx Shares which the Securityholder acquires beneficial ownership or warranties contained in this Agreement becoming untrue control, directly or incorrect in any material respect indirectly, if any, after the date hereof and prior to the termination Expiry Date. Any such Xxxxxx Shares shall be included as part of the Securityholder’s Shares and subject to the terms of this Agreement. .
(e) The Securityholder acknowledges and agrees that hereby irrevocably consents to: (i) details of this Agreement being set out in any Options, PSUs, RSUs and DSUs held proxy or registration statement or circular produced by him or her, to the extent not exercised or settled, shall be treated Xxxxxx in accordance connection with the Arrangement Xxxxxx Meeting and he the Fibrek Transaction; and (ii) this Agreement being made publicly available.
(f) The Securityholder agrees that, until the Expiry Date, the Securityholder will not take any other action of any kind which might reasonably be regarded as likely to reduce the success of, or she shall take all steps required delay or interfere with the approval of him or her to give effect to such treatmentthe Xxxxxx Resolutions at the Xxxxxx Meeting.
Appears in 1 contract
Samples: Voting Support Agreement (Mercer International Inc.)
Covenants of the Securityholder. The Securityholder covenants and agrees that, until the earlier of: (i) the closing of the Proposed Transaction and (ii) the date this Agreement is terminated in accordance with its terms, the Securityholder shall:
(a) attend (either in person or by proxy) any AuRico Arrangement Alamos Meeting (including any adjournments and postponements thereof), and at the AuRico Arrangement Alamos Meeting, vote or cause to be voted all of: (i) the Shares; (ii) any Shares acquired by or issued to the 36566-2054 24092387.2 Securityholder on or following the date hereof (including any common shares of AuRico Alamos issued upon the exerciseexercise of Options, OptionsWarrants, PSUs, RSUs or DSUs); (iii) the Options, Warrants, PSUs, RSUs or DSUs; and (iv) any Options, Warrants, PSUs, RSUs or DSUs acquired by or issued to the Securityholder on or following the date hereof, that are beneficially owned by, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted at the AuRico Arrangement Alamos Meeting (the “Subject Securities”) in favour of the Proposed Transaction and all matters related thereto;
(b) vote or cause to be voted (in person or by proxy) at any meeting of the securityholders of AuRico Alamos any Subject Securities against, or not tender or cause to be tendered any Subject Securities to:
(i) any corporate transaction, such as a merger, amalgamation, arrangement, rights offering, reorganization, recapitalization, or liquidation or liquidation, take-over bid, sale or transfer of a material amount of assets of AuRico Alamos or similar transaction involving AuRico Alamos or the common shares of AuRico Alamos (a “Corporate Transaction”) other than (i) the Proposed Transaction and any transaction related theretothereto or (ii) a Corporate Transaction that does not have as a condition that the Proposed Transaction or any transaction related thereto is not completed;
(ii) the issuance of any securities of AuRico Alamos (other than pursuant to the exercise of Options or Warrants, or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
(iii) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, or adversely affect in any material respect the Proposed Transaction including, without limitation, any AuRico Acquisition Proposal; or
(iv) any action or agreement that would result in a breach of any representation, warranty, or covenant or other obligation of AuRico Alamos in the Arrangement Agreement;
(c) upon the request or direction of AlamosRichmont, execute a proxy in respect of any resolution referred to in Section 3(b), and have all of its Subject Securities counted or not counted (as directed by AlamosRichmont) as part of a quorum in connection with any meeting of securityholders of AuRico Alamos relating to matters set forth in Section 3(b);
(d) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos Richmont prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos Richmont shall instruct, including the delivery to AlamosRichmont, upon its request or direction, of a proxy in respect of any such resolution;
(e) not, without the prior written consent of AlamosRichmont, sell, transfer, assign, pledge, encumber or otherwise dispose of, or enter into any agreement or understanding relating to the sale, transfer, assignment, pledge, encumbrance or other disposition 36566-2054 24092387.2 of, the Subject Securities or any interest therein (other than as contemplated herein), provided, however, that nothing contained herein shall prohibit the Securityholder from exercising any Options or Warrants, or settling any PSUs, RSUs or DSUs for cash and/or common shares of AuRicoAlamos, as applicable (it being understood that such Subject Securities will be voted in accordance with Section 3(a));
(f) not, except as required pursuant to this Agreement, grant or agree to grant any proxy or other right to vote the Subject Securities or enter into any voting trust or pooling agreement or arrangement in respect of the Subject Securities or enter into or subject any of the Subject Securities to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting or tendering thereof or revoke any proxy granted pursuant to this Agreement;
(g) not exercise any rights of dissent or appraisal in respect of any resolution approving the Proposed Transaction or any aspect thereof or matter related thereto, and not exercise any other securityholder rights or remedies available at common law or pursuant to applicable corporate or securities law or other legislation or not take any action that is reasonably likely to in any manner impede, interfere with, delay, postpone, hinder, prevent, or challenge the Proposed Transaction;
(h) not, subject to Section 7, not, except as may be expressly permitted by the Arrangement Agreement or by Alamos Richmont in writing, directly or indirectly:
(i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, knowingly permitting any visit to facilities or properties of Alamos or any facilities of its Subsidiaries or entering into any form of agreement, arrangement or understanding) any inquiries inquiry, proposal, expression of interest or proposals, whether publicly offer that constitutes or otherwise, regarding that may reasonably be expected to lead an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(ii) enter intoparticipate, engagedirectly or indirectly, continue or participate in any discussions or negotiations or discussions regardingregarding any inquiry, or provide any non-public information with respect to AuRico or any proposal, expression of its subsidiaries, interest or offer that constitutes or provide access that may reasonably be expected to lead to an Acquisition Proposal (provided that, if the businessSecurityholder is a director or officer of Alamos, propertiesthe Securityholder may, assetsin such capacity, books or records advise any person making an unsolicited Acquisition Proposal that such Acquisition Proposal does not constitute an Alamos Superior Proposal if the Alamos Board has so determined in compliance with Article 6 of AuRico or any of its subsidiaries the Arrangement Agreement) or otherwise cooperate in with or assist any way with, effort or attempt to make any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in the requisition of any meeting of the securityholders of AuRico Alamos for the purpose of considering any resolution; or
(iv) solicit or arrange (or provide assistance to any other person to arrange arrange) for the solicitation of, of proxies relating to to, or purchases of or offers to sell sell, common shares of AuRico Alamos or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico Alamos, or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico 36566-2054 24092387.2 Alamos or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico Alamos for the purpose of influencing the voting of common shares of AuRico Alamos or affecting the control of AuRicoAlamos, other than, in the case of proxy solicitation, in support of the Proposed Transaction;; and
(i) promptly notify Alamos Richmont upon any of undersigned’s representations or warranties contained in this Agreement becoming untrue or incorrect in any material respect prior to the termination of this Agreement. The Securityholder acknowledges and agrees that any Options, Warrants, PSUs, RSUs and DSUs held by him or her, to the extent not exercised or settled, shall be treated in accordance with the Arrangement and he or she shall take all steps required of him or her to give effect to such treatment.
Appears in 1 contract
Covenants of the Securityholder. The Securityholder covenants irrevocably and unconditionally covenants, undertakes and agrees that, until the earlier of: (i) the closing termination of the Proposed Transaction and (ii) the date this Agreement is terminated in accordance with its terms, the Securityholder shall:
(a) not, directly or indirectly, solicit, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing or providing copies of, access to, or disclosure of, any information, properties, facilities, books or records of Agnico, Kxxxxxxx or any of their respective Subsidiaries) or take any action to solicit, initiate or knowingly encourage or otherwise facilitate, or otherwise engage or participate in, and immediately cease and cause to be terminated, any negotiations or any discussions regarding any inquiry, proposal, expression of interest or offer that constitutes or could reasonably be expected to constitute or lead to, an Acquisition Proposal in respect of Agnico;
(b) attend (either virtually, in person or by proxy) any AuRico meeting (including the Agnico Meeting) of the securityholders of Agnico convened for the purposes of considering the Agnico Resolution or to give effect to the Arrangement Meeting (including any adjournments and postponements thereof), and at the AuRico Arrangement Meetingsuch meeting, cause its Subject Securities to be counted as present for purposes of establishing quorum and, vote or cause to be voted all of: of the Subject Securities (i) the Shares; (ii) any Shares acquired by or issued which have a right to the Securityholder on or following the date hereof (including any common shares of AuRico issued upon the exercise, Options, PSUs, RSUs or DSUs); (iii) the Options, PSUs, RSUs or DSUs; and (iv) any Options, PSUs, RSUs or DSUs acquired by or issued to the Securityholder on or following the date hereof, that are beneficially owned by, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted vote at the AuRico Arrangement Meeting (the “Subject Securities”such meeting) in favour of the Proposed Transaction approval of the Agnico Resolution and the transactions contemplated by the Merger Agreement (and any actions reasonably required for the consummation of the transactions contemplated in the Merger Agreement and all matters related thereto);
(bc) attend (virtually, in person or by proxy) any meeting (including the Agnico Meeting) of the securityholders of Agnico convened for the purposes of considering any Acquisition Proposal and/or any other transaction or matter that could reasonably be expected to delay, prevent, frustrate or interfere with the consummation of the Arrangement or any transaction or matter contemplated by the Merger Agreement (including any adjournments and postponements thereof), and at such meeting, cause its Subject Securities to be counted as present for purposes of establishing quorum and, vote or cause to be voted (in person or by proxy) at any meeting all of the securityholders of AuRico any Subject Securities against(which have a right to vote at such meeting) against any Acquisition Proposal and/or any transaction or matter that could reasonably be expected to delay, prevent, frustrate or interfere with, the completion of the Arrangement or any transaction or matter related to the Arrangement or contemplated by the Merger Agreement;
(d) not tender or cause to be tendered any Subject Securities to:
(i) to any corporate transactionAcquisition Proposal or other transaction or matter other than the Arrangement, such as a merger, amalgamation, arrangement, business combination, rights offering, reorganization, recapitalization, recapitalization or liquidation or take-over bid, sale or transfer of a material amount of assets of AuRico bid or similar transaction involving AuRico Agnico or the common shares of AuRico other than the Proposed Transaction and any transaction related thereto;
(ii) the issuance of any securities of AuRico (other than pursuant its Shares that could reasonably be expected to the exercise of Options prevent, delay, frustrate or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
(iii) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, or adversely affect in any material respect the Proposed Transaction including, without limitation, any AuRico Acquisition Proposal; or
(iv) any action or agreement that would result in a breach completion of any representation, warranty, or covenant or other obligation of AuRico in the Arrangement or any transaction or matter related to the Arrangement or contemplated by the Merger Agreement;
(c) upon the request or direction of Alamos, execute a proxy in respect of any resolution referred to in Section 3(b), and have all of its Subject Securities counted or not counted (as directed by Alamos) as part of a quorum in connection with any meeting of securityholders of AuRico relating to matters set forth in Section 3(b);
(d) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolution;
(e) not, without the prior written consent of AlamosKxxxxxxx, sell, transfer, assign, pledge, encumber hypothecate, encumber, grant a security interest in, gift or otherwise dispose ofof any Subject Securities, or enter into any agreement agreement, arrangement or understanding relating in connection with any of the foregoing (whether by actual disposition or effective economic disposition due to cash settlement or otherwise), other than (i) pursuant to the sale, transfer, assignment, pledge, encumbrance or other disposition of, the Subject Securities Arrangement or any interest therein (other than as transactions contemplated herein)by the Merger Agreement, provided, however, that nothing contained herein shall prohibit or permit any Affiliate of the Securityholder from exercising to do any Options of the foregoing, and (ii) with respect to the sale of a portion of any Shares issued upon vesting and exercise or settling settlement of the Options, PSUs and RSUs held by the Securityholder that vest prior to the completion of the Arrangement solely in order to satisfy any PSUs, RSUs or DSUs for cash and/or common shares of AuRico, as applicable (it being understood tax liabilities that such Securities will be voted arise in accordance with Section 3(a))connection therewith;
(f) not, except as required pursuant to this Agreement, grant or agree to grant any proxy proxy, power of attorney or other right to vote the Subject Securities, or deposit any of the Subject Securities or enter into any voting trust or enter into any vote pooling agreement or voting arrangement or enter into or subject any of the such Subject Securities to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting voting, calling of meetings of Agnico Shareholders, the tendering thereof, or tendering thereof the granting of consents or revoke approvals of any proxy granted pursuant kind with respect to this Agreementany Subject Securities;
(g) not exercise any rights of dissent or appraisal in respect of any resolution approving the Proposed Transaction Agnico Resolution or any aspect thereof or matter related theretoto the transactions contemplated by the Merger Agreement, and not exercise any other securityholder rights or remedies or bring or threaten to bring any suit or proceeding available at common law or pursuant to applicable securities, corporate or securities law or other legislation Law or not take any action that is reasonably likely to in any manner impede, interfere with, delay, postpone, hinder, prevent, frustrate, interfere with or challenge the Proposed TransactionArrangement or any transaction contemplated by the Merger Agreement;
(h) not, subject to Section 7without the prior written consent of Kxxxxxxx, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectly:
(i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, permitting any visit to any facilities or entering into any form of agreement, arrangement or understanding) any inquiries or proposals, whether publicly or otherwise, regarding an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(ii) enter into, engage, continue or participate in any negotiations or discussions regarding, or provide any non-public information with respect to AuRico or any of its subsidiaries, or offer or provide access to the business, properties, assets, books or records of AuRico or any of its subsidiaries or otherwise cooperate in any way with, any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in the requisition of any meeting of any of the securityholders of AuRico Agnico Shareholders for the purpose of considering any resolution; or
(iv) solicit resolution which may reasonably be expected to prevent, delay, frustrate or arrange or provide assistance to any other person to arrange for interfere with, the solicitation of, proxies relating to or purchases of or offers to sell common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico for the purpose of influencing the voting of common shares of AuRico or affecting the control of AuRico, other than, in the case of proxy solicitation, in support completion of the Proposed TransactionArrangement or any transaction or matter related to the Arrangement or contemplated by the Merger Agreement;
(i) promptly notify Alamos upon not make any public statement or take any other action of undersigned’s representations any kind which may reasonably be expected to prevent, delay, frustrate or warranties contained in this Agreement becoming untrue interfere with, the completion of the Arrangement or incorrect in any material respect prior transaction or matter related to the termination Arrangement or contemplated by the Merger Agreement; and
(j) not do indirectly that which it may not do directly in respect of the restrictions on its rights with respect to the Securityholder’s Subject Securities pursuant to this Agreement. The Securityholder acknowledges and agrees that any Options, PSUs, RSUs and DSUs held by him or her, to the extent not exercised or settled, shall be treated in accordance with the Arrangement and he or she shall take all steps required of him or her to give effect to such treatment.
Appears in 1 contract
Samples: Support and Voting Agreement (Agnico Eagle Mines LTD)
Covenants of the Securityholder. The Securityholder covenants and agrees that, until the earlier of: (i) the closing of the Proposed Transaction and (ii) the date this Agreement is terminated in accordance with its terms, the Securityholder shall:
(a) attend (either in person or by proxy) any AuRico Arrangement Alamos Meeting (including any adjournments and postponements thereof), and at the AuRico Arrangement Alamos Meeting, vote or cause to be voted all of: (i) the Shares; (ii) any Shares acquired by or issued to the 36566-2054 24092387.2 Securityholder on or following the date hereof (including any common shares of AuRico Alamos issued upon the exerciseexercise of Options, OptionsWarrants, PSUs, RSUs or DSUs); (iii) the Options, Warrants, PSUs, RSUs or DSUs; and (iv) any Options, Warrants, PSUs, RSUs or DSUs acquired by or issued to the Securityholder on or following the date hereof, that are beneficially owned by, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted at the AuRico Arrangement Alamos Meeting (the “Subject Securities”) in favour of the Proposed Transaction and all matters related thereto;
(b) vote or cause to be voted (in person or by proxy) at any meeting of the securityholders of AuRico Alamos any Subject Securities against, or not tender or cause to be tendered any Subject Securities to:
(i) any corporate transaction, such as a merger, amalgamation, arrangement, rights offering, reorganization, recapitalization, or liquidation or liquidation, take-over bid, sale or transfer of a material amount of assets of AuRico Alamos or similar transaction involving AuRico Alamos or the common shares of AuRico Alamos (a “Corporate Transaction”) other than (i) the Proposed Transaction and any transaction related theretothereto or (ii) a Corporate Transaction that does not have as a condition that the Proposed Transaction or any transaction related thereto is not completed;
(ii) the issuance of any securities of AuRico Alamos (other than pursuant to the exercise of Options or Warrants, or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
(iii) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, or adversely affect in any material respect the Proposed Transaction including, without limitation, any AuRico Acquisition Proposal; or
(iv) any action or agreement that would result in a breach of any representation, warranty, or covenant or other obligation of AuRico Alamos in the Arrangement Agreement;
(c) upon the request or direction of AlamosRichmont, execute a proxy in respect of any resolution referred to in Section 3(b), and have all of its Subject Securities counted or not counted (as directed by AlamosRichmont) as part of a quorum in connection with any meeting of securityholders of AuRico Alamos relating to matters set forth in Section 3(b);
(d) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos Richmont prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos Richmont shall instruct, including the delivery to AlamosRichmont, upon its request or direction, of a proxy in respect of any such resolution;
(e) not, without the prior written consent of AlamosRichmont, sell, transfer, assign, pledge, encumber or otherwise dispose of, or enter into any agreement or understanding 36566-2054 24092387.2 relating to the sale, transfer, assignment, pledge, encumbrance or other disposition of, the Subject Securities or any interest therein (other than as contemplated herein), provided, however, that nothing contained herein shall prohibit the Securityholder from exercising any Options or Warrants, or settling any PSUs, RSUs or DSUs for cash and/or common shares of AuRicoAlamos, as applicable (it being understood that such Subject Securities will be voted in accordance with Section 3(a));
(f) not, except as required pursuant to this Agreement, grant or agree to grant any proxy or other right to vote the Subject Securities or enter into any voting trust or pooling agreement or arrangement in respect of the Subject Securities or enter into or subject any of the Subject Securities to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting or tendering thereof or revoke any proxy granted pursuant to this Agreement;
(g) not exercise any rights of dissent or appraisal in respect of any resolution approving the Proposed Transaction or any aspect thereof or matter related thereto, and not exercise any other securityholder rights or remedies available at common law or pursuant to applicable corporate or securities law or other legislation or not take any action that is reasonably likely to in any manner impede, interfere with, delay, postpone, hinder, prevent, or challenge the Proposed Transaction;
(h) not, subject to Section 7, not, except as may be expressly permitted by the Arrangement Agreement or by Alamos Richmont in writing, directly or indirectly:
(i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, knowingly permitting any visit to facilities or properties of Alamos or any facilities of its Subsidiaries or entering into any form of agreement, arrangement or understanding) any inquiries inquiry, proposal, expression of interest or proposals, whether publicly offer that constitutes or otherwise, regarding that may reasonably be expected to lead an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(ii) enter intoparticipate, engagedirectly or indirectly, continue or participate in any discussions or negotiations or discussions regardingregarding any inquiry, or provide any non-public information with respect to AuRico or any proposal, expression of its subsidiaries, interest or offer that constitutes or provide access that may reasonably be expected to lead to an Acquisition Proposal (provided that, if the businessSecurityholder is a director or officer of Alamos, propertiesthe Securityholder may, assetsin such capacity, books or records advise any person making an unsolicited Acquisition Proposal that such Acquisition Proposal does not constitute an Alamos Superior Proposal if the Alamos Board has so determined in compliance with Article 6 of AuRico or any of its subsidiaries the Arrangement Agreement) or otherwise cooperate in with or assist any way with, effort or attempt to make any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in the requisition of any meeting of the securityholders of AuRico Alamos for the purpose of considering any resolution; oror 36566-2054 24092387.2
(iv) solicit or arrange (or provide assistance to any other person to arrange arrange) for the solicitation of, of proxies relating to to, or purchases of or offers to sell sell, common shares of AuRico Alamos or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico Alamos, or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico Alamos or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico Alamos for the purpose of influencing the voting of common shares of AuRico Alamos or affecting the control of AuRicoAlamos, other than, in the case of proxy solicitation, in support of the Proposed Transaction;; and
(i) promptly notify Alamos Richmont upon any of undersigned’s representations or warranties contained in this Agreement becoming untrue or incorrect in any material respect prior to the termination of this Agreement. The Securityholder acknowledges and agrees that any Options, Warrants, PSUs, RSUs and DSUs held by him or her, to the extent not exercised or settled, shall be treated in accordance with the Arrangement and he or she shall take all steps required of him or her to give effect to such treatment.
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Covenants of the Securityholder. The Securityholder covenants and agrees that, until the earlier of: (i) the closing of the Proposed Transaction Effective Time and (ii) the date this Agreement is terminated in accordance with its terms(such earlier date being the "Release Date"), the Securityholder shall:
(a) attend (either in person or by proxy) any AuRico Arrangement Meeting meeting (including a special meeting of securityholders (or any class thereof) of Contact Nevada at which the Proposed Transaction is to be considered (the "Meeting")) of the securityholders of Contact Nevada convened for the purposes of considering the Proposed Transaction (including any adjournments and postponements thereof), and at the AuRico Arrangement such Meeting, vote or cause to be voted all of: (i) of the Shares; (ii) any Shares acquired by or issued to the Securityholder on or following the date hereof (including any common shares of AuRico issued upon the exercise, Options, PSUs, RSUs or DSUs); (iii) the Options, PSUs, RSUs or DSUs; and (iv) any Options, PSUs, RSUs or DSUs acquired by or issued to the Securityholder on or following the date hereofContact Stock, that are beneficially owned by, whether directly or indirectly, or over which control or direction is exercised by, the Securityholder and which are entitled to be voted at such Meeting, whether now held or hereafter acquired (collectively, the AuRico Arrangement Meeting (the “"Subject Securities”") in favour of the Proposed Transaction and all matters related thereto;
(b) vote or cause to be voted (in person or , as contemplated by proxy) at any meeting of the securityholders of AuRico any Subject Securities against, or not tender or cause to be tendered any Subject Securities to:
(i) any corporate transaction, such as a merger, amalgamation, arrangement, rights offering, reorganization, recapitalization, or liquidation or take-over bid, sale or transfer of a material amount of assets of AuRico or similar transaction involving AuRico or the common shares of AuRico other than the Proposed Transaction and any transaction related thereto;
(ii) the issuance of any securities of AuRico (other than pursuant to the exercise of Options or the settlement of PSUs, RSUs or DSUs) other than the Proposed Transaction and any transaction related thereto;
(iii) any action that is reasonably likely to impede, interfere with, delay, postpone, hinder, prevent, or adversely affect in any material respect the Proposed Transaction including, without limitation, any AuRico Acquisition Proposal; or
(iv) any action or agreement that would result in a breach of any representation, warranty, or covenant or other obligation of AuRico in the Arrangement Agreement;
(c) upon the request or direction of Alamos, execute a proxy in respect of any resolution referred to in Section 3(b), and have all of its Subject Securities counted or not counted (as directed by Alamos) as part of a quorum in connection with any meeting of securityholders of AuRico relating to matters set forth in Section 3(b);
(d) for greater certainty, in connection with any matter referred to in Section 3(b), consult with Alamos prior to exercising any voting rights attached to its Subject Securities and exercise or procure the exercise of such voting rights as Alamos shall instruct, including the delivery to Alamos, upon its request or direction, of a proxy in respect of any such resolution;
(eb) not, without the prior written consent of AlamosContact Nevada, sell, transfer, assign, pledge, encumber or otherwise dispose of, or enter into any agreement or understanding relating to the sale, transfer, assignment, pledge, encumbrance assignment or other disposition of, of the Subject Securities or any interest therein (other than as contemplated herein), provided, however, that nothing contained herein shall prohibit ) or permit any affiliate of the Securityholder from exercising to do any Options or settling any PSUs, RSUs or DSUs for cash and/or common shares of AuRico, as applicable (it being understood that such Securities will be voted in accordance with Section 3(a))the foregoing;
(fc) not, except as required pursuant to this Agreement, grant or agree to grant any proxy or other right to vote the Subject Securities or enter into any voting trust or pooling agreement or arrangement or enter into or subject any of the such Subject Securities to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting or tendering thereof or revoke any proxy granted pursuant to this Agreement;; and
(gd) not exercise any rights of dissent or appraisal in respect of any resolution approving the Proposed Transaction or any aspect thereof or matter related thereto, and not exercise any other securityholder rights or remedies available at common law or pursuant to applicable corporate or securities law or other legislation or not take any action that is reasonably likely to in any manner impede, interfere with, delay, postpone, hinder, prevent, interfere with or challenge the Proposed Transaction;
(h) not, subject to Section 7, except as may be expressly permitted by the Arrangement Agreement or by Alamos in writing, directly or indirectly:
(i) solicit, assist, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing information, permitting any visit to any facilities or entering into any form of agreement, arrangement or understanding) any inquiries or proposals, whether publicly or otherwise, regarding an AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(ii) enter into, engage, continue or participate in any negotiations or discussions regarding, or provide any non-public information with respect to AuRico or any of its subsidiaries, or offer or provide access to the business, properties, assets, books or records of AuRico or any of its subsidiaries or otherwise cooperate in any way with, any AuRico Acquisition Proposal or potential AuRico Acquisition Proposal;
(iii) requisition or join in the requisition of any meeting of the securityholders of AuRico for the purpose of considering any resolution; or
(iv) solicit or arrange or provide assistance to any other person to arrange for the solicitation of, proxies relating to or purchases of or offers to sell common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico or act in concert or jointly with any other person for the purpose of acquiring any common shares of AuRico or securities convertible into or exchangeable or exercisable for, or representing, common shares of AuRico for the purpose of influencing the voting of common shares of AuRico or affecting the control of AuRico, other than, in the case of proxy solicitation, in support of the Proposed Transaction;
(i) promptly notify Alamos upon any of undersigned’s representations or warranties contained in this Agreement becoming untrue or incorrect in any material respect prior to the termination of this Agreement. The Securityholder acknowledges and agrees that any Options, PSUs, RSUs and DSUs held by him or her, to the extent not exercised or settled, shall be treated in accordance with the Arrangement and he or she shall take all steps required of him or her to give effect to such treatment.
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