Covenants of the Sellers. 2.1 Each Seller hereby agrees that he shall not, from the date hereof until the earlier of: (i) the termination of this Agreement pursuant to Article 5; and (ii) the Expiry Time, except in accordance with the terms of this Agreement: (a) except to the extent permitted by Sections 2.1(d) and 2.2(a), take any action, directly or indirectly, which may in any way adversely affect in any material respect the success of the Offer or the purchase of any Company Shares under the Offer; (b) acquire direct or indirect beneficial ownership or holding of or control or direction over any additional Company Shares or obtain or enter into any right to do so, with the exception of any Company Shares acquired pursuant to the exercise of Options; (c) grant or agree to grant any proxy or other right to the Subject Company Shares, or enter into any voting trust or pooling agreement or arrangement or enter into or subject any of such Subject Company Shares to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting thereof; (d) in any manner, directly or indirectly, through any officer, director, employee, representative (including for greater certainty any financial or other advisors) or agent or otherwise (as applicable), make, solicit, assist, initiate, encourage or otherwise facilitate any inquiries, proposals or offers from any person regarding an Acquisition Proposal, engage in any discussions or negotiations regarding any Acquisition Proposal, or otherwise co-operate in any way with, or assist or participate in, knowingly facilitate or encourage any effort or attempt by any other person to do or seek to do any of the foregoing; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which (i) the Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support Agreement; and (ii) in respect of which the Board of Directors, after receiving advice of the Company’s outside legal counsel reflected in the minutes of the Board of Directors to such effect, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties under all applicable laws; (e) solicit or arrange or provide assistance to any other person to arrange for the solicitation of, purchases of or offers to sell Company Shares or act in concert or jointly with any other person for the purpose of acquiring Company Shares or the purpose of affecting the control of the Company; (f) option, sell, assign, dispose of, pledge, encumber, grant a security interest in or otherwise convey any Options or Subject Company Shares or any right or interest therein, or enter into a stock lending arrangement with respect to any Subject Company Shares, or agree to do any of the foregoing except pursuant to the Offer and this Agreement; (g) vote or cause to be voted any of the Seller’s Subject Company Shares in respect of any proposed action by the Company or its shareholders or affiliates or any other person in a manner which would reasonably be regarded as likely to prevent or delay the successful completion of the Offer; (h) except as required by applicable laws, prior to the public announcement by the Parent of its intention to cause the Offeror to make the Offer, directly or indirectly, disclose to any person, firm or corporation (other than the Company and the financial and legal advisors of the Company) the existence of the terms and conditions of this Agreement, or the possibility of the Parent or the Offeror making the Offer or any terms or conditions or other information concerning the Offer; or (i) not take any action to encourage or assist any other person to do any of the prohibited acts referred to in foregoing provisions of this Section 2.1. 2.2 Each Seller hereby agrees that he shall, from the date hereof until the earlier of: (i) the termination of this Agreement pursuant to Article 5; and (ii) the Expiry Time, except in accordance with the terms of this Agreement: (a) immediately cease any existing solicitations, discussions or negotiations he is engaged in with any person other than the Parent and the Offeror with respect to any potential Acquisition Proposal and request the return or destruction of all confidential information provided in connection therewith; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support Agreement; (b) as soon as reasonably practicable notify the Parent and the Offeror of: (i) any proposal, inquiry, offer (or any amendment thereto) or request that the Seller receives, or of which the Seller becomes aware, that relates to, or constitutes, or which the Seller reasonably believes could lead to, a bona fide Acquisition Proposal; or (ii) any request that the Seller receives for discussions or negotiations relating to an Acquisition Proposal or any request for non-public information relating to the Company or its Subsidiaries or any of their respective mineral properties by any person or entity that informs the Seller that it is considering making, or has made, an Acquisition Proposal. Such notice to the Parent and the Offeror shall be made, from time to time, orally and in writing and shall include a description of the terms and conditions of any such proposal, inquiry, offer (including any amendment thereto) or request and shall include copies of any such proposal, inquiry, offer or request or any amendment to any of the foregoing; and (c) exercise the voting rights attaching to the Subject Company Shares and otherwise use the Seller’s commercially reasonable efforts in the Seller’s capacity as a shareholder of the Company to oppose any proposed action by the Company, its shareholders, its Subsidiaries or any other person: (i) in respect of any merger, take-over bid, amalgamation, plan of arrangement, business combination or similar transaction involving the Company or its Subsidiaries, other than the Offer; (ii) which would reasonably be regarded as being directed towards or likely to prevent or delay the take-up of and payment for the Subject Company Shares deposited under the Offer or the successful completion of the Offer, including without limitation any amendment to the articles or by-laws of the Company or its corporate structure; or (iii) which would reasonably be expected to result in a Company Material Adverse Effect. In connection therewith, the Seller hereby appoints the Parent as its attorney in fact (which appointment is unconditional, irrevocable (subject to Article 5), and is coupled with an interest) for and on his behalf to execute a proxy appointing a person designated by the Parent to attend and act on behalf of the Seller at any meeting of shareholders of the Company in respect of any of the matters referred to in this Section 2.2(c); provided that if, pursuant to this power of attorney, the Parent has executed and not revoked a proxy in respect of such a meeting, which proxy has been accepted by the Company, then in such circumstances the Seller shall not be responsible for voting under this Section 2.2(c). The Parent shall advise the Seller upon executing any proxies in respect of the Subject Company Shares held by the Seller. 2.3 Each Seller covenants to co-operate with the Parent and the Offeror in making all requisite regulatory filings.
Appears in 3 contracts
Samples: Lock Up Agreement (Agnico Eagle Mines LTD), Lock Up Agreement (Agnico Eagle Mines LTD), Lock Up Agreement (Agnico Eagle Mines LTD)
Covenants of the Sellers. 2.1 Each Seller hereby agrees that he shall notagrees, from the date hereof until the earlier of: (i) the termination of this Lock-Up Agreement pursuant to Article 56; and (ii) the Expiry Effective Time, except in accordance with the terms of this Lock-Up Agreement, not to:
(a) except to the extent permitted by Sections 2.1(d) and 2.2(a), take any action, directly or indirectly, which may in any way adversely affect in any material respect the success of the Offer or the purchase of any Company Shares under the Offer;
(b) acquire direct or indirect beneficial ownership or holding control of or control or direction over any additional Company Shares or Options or obtain or enter into any right to do so, with the exception of any Company Shares acquired pursuant to the exercise of OptionsOptions as contemplated by Section 3.2 hereof and any Bonus Shares listed immediately below such Seller’s Acceptance;
(b) 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 Options or Subject Shares or any right or interest in either, or agree to do any of the foregoing except pursuant to the Offer or pursuant to Section 2.5;
(c) grant or agree to grant any proxy or other right to the Subject Company Shares, or enter into any voting trust or pooling agreement or arrangement or enter into or subject any of such Subject Company Shares to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting thereof;
(d) in any manner, directly or indirectly, including through any officer, director, employee, representative (including for greater certainty any financial or other advisors) or agent or otherwise (as applicable), makeRepresentative, solicit, assist, initiate, or knowingly encourage or otherwise facilitate any inquiries, proposals proposals, offers or offers public announcements (or the submission or initiation of any of the foregoing) from any person regarding an any Acquisition Proposal, engage in any negotiations concerning, or provide any information to, or have any discussions with or negotiations regarding otherwise cooperate with, any person relating to an Acquisition Proposal, or otherwise co-operate in any way with, or assist or participate in, knowingly facilitate or knowingly encourage any effort or attempt by any other person to do make or seek to do any of the foregoing; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written implement an Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which (i) the Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support Agreement; and (ii) in respect of which the Board of Directors, after receiving advice of the Company’s outside legal counsel reflected in the minutes of the Board of Directors to such effect, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties under all applicable lawsProposal;
(e) solicit or arrange or provide assistance to any other person to arrange for the solicitation of, purchases of or offers to sell Company Shares or act in concert or jointly with any other person for the purpose of acquiring Company Shares or for the purpose of affecting the control of the Company;
(f) option, sell, assign, dispose of, pledge, encumber, grant a security interest deposit or cause to be deposited such Seller’s Subject Shares under any Acquisition Proposal nor support any Acquisition Proposal in or otherwise convey any Options or Subject Company Shares or any right or interest therein, or enter into a stock lending arrangement with respect to any Subject Company Shares, or agree to do any of the foregoing except pursuant to the Offer and this Agreementmanner whatsoever;
(g) vote or cause to be voted any of the Seller’s Subject Company Shares in respect of any proposed action by the Company or its shareholders or affiliates or any other person in a manner which would reasonably be regarded as likely to prevent or delay the successful completion of the Offer;
(h) except as required by applicable lawsLaws, prior to the public announcement by the Parent Offeror of its intention to cause the Offeror to make the Offer, directly or indirectly, disclose to any person, firm or corporation person (other than the Company and the its financial and legal advisors of the Companyadvisors) the existence of this Lock-Up Agreement or the terms and conditions of this Lock-Up Agreement, or the possibility of the Parent or the Offeror making the Offer or any terms or conditions or other information concerning the Offer;
(h) 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 Support Agreement; orand
(i) not 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 2.1.
2.2 Each Seller hereby agrees that he shallagrees, from the date hereof until the earlier of: (i) the termination of this Lock-Up Agreement pursuant to Article 56; and (ii) the Expiry Effective Time, except in accordance with the terms of this Lock-Up Agreement, to:
(a) immediately cease, cause its Representatives to cease and cause to be terminated any existing solicitations, discussions or negotiations he is engaged in with any person parties (other than the Parent and Offeror or any Representative of the Offeror Offeror) with respect to any Acquisition Proposal or any potential Acquisition Proposal and request the return or destruction of all confidential information provided in connection therewith; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support AgreementProposal;
(b) as soon as reasonably practicable promptly notify Offeror, at first orally and then in writing, of all Acquisition Proposals currently under consideration or of which the Parent Seller is aware;
(c) promptly (and the Offeror in any event within 24 hours after it has received any proposal, inquiry, offer or request) notify Offeror, at first orally and then in writing of: (i) any proposal, inquiry, offer (or request, or any amendment theretoto any of the foregoing (each, a “Third Party Inquiry”) or request that the Seller receives, receives or of which the Seller becomes aware, aware that relates to, constitutes or constitutes, or which the Seller reasonably believes could lead to, a bona fide to an Acquisition Proposal; or (ii) any request that the Seller receives for discussions or negotiations relating to an Acquisition Proposal or any request for non-public information relating to the Company or its Subsidiaries or any of their respective mineral properties by any person or entity that informs the Seller that it is considering makingcontractual or legal rights or for access to properties, books and records or has made, an Acquisition Proposala list of Shareholders. Such notice to the Parent and the Offeror shall be made, from time to time, orally and in writing and shall include a description of the terms and conditions of, and the identity of the person making, any such proposal, inquiry, offer (including any amendment thereto) or request Third Party Inquiry and shall include copies of such Third Party Inquiry and any other written correspondence related to such proposal, inquiry, offer or request or any amendment to any Third Party Inquiry. The Seller shall also provide such other details of the foregoingThird Party Inquiry as Offeror may reasonably request. The Seller shall keep Offeror promptly and fully informed of the status, including any change to the material terms, of any Third Party Inquiry, and will respond promptly to all inquiries by Offeror with respect thereto; and
(cd) exercise the voting rights attaching to the Subject Company Shares and otherwise use the Seller’s commercially reasonable efforts in the Seller’s capacity as a shareholder of the Company Shareholder to oppose any proposed action by the CompanyCompany or its Subsidiaries, its shareholders, its Subsidiaries the Shareholders or any other person: person (iA) in respect of any merger, take-over bid, amalgamation, plan of arrangement, business combination or similar transaction Acquisition Proposal involving the Company or its Subsidiaries, other than the Offer; (iiB) which would reasonably be regarded as being directed towards may in any manner adversely affect, by delay or likely to prevent or delay otherwise, the take-up of and payment for the Subject Company Shares deposited under the Offer or the successful completion of the Offer, including without limitation limitation, any amendment to the articles memorandum or by-laws articles, constating documents or corporate structure of the Company or its corporate structure; Company, or (iiiC) which would reasonably be expected to result in a Company Material Adverse Effect. In connection therewith, the Seller hereby appoints Offeror as the Parent as its Seller’s attorney in fact (which appointment is unconditional, irrevocable (subject to Article 56), and is coupled with an interest) for and on his such Seller’s behalf to execute a proxy appointing a person designated by the Parent Offeror to attend and act on behalf of the Seller at any meeting of shareholders of the Company Shareholders and to execute one or more Shareholder consents or other Shareholder approval documents in respect of any of the matters referred to in this Section 2.2(c); provided that if, pursuant to this power of attorney, the Parent has executed and not revoked a proxy in respect of such a meeting, which proxy has been accepted by the Company, then in such circumstances the Seller shall not be responsible for voting under this Section 2.2(c2.2(d). The Parent Offeror shall advise the Seller upon executing any proxies or Shareholder consents or other Shareholder approval documents in respect of the Subject Company Shares held by the Seller.
2.3 Each Seller covenants to co-operate with the Parent and the Offeror in making all requisite regulatory filings.
2.4 Nothing in this Article 2 shall prevent a Seller who is a member of the board of directors of the Company or is a senior officer of the Company from engaging, in such Seller’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 Acquisition Proposal made in writing to the board of directors of the Company by such person (which Acquisition Proposal did not result from a breach of this Lock-Up Agreement or the Support Agreement) in circumstances where the Company is permitted by section 3.3(a) of the Support Agreement to engage in such discussions or negotiations. For greater certainty, each Seller acknowledges that this Section 2.4 shall not affect such Seller’s obligation to deposit or cause to be deposited (and, except as permitted by this Lock-Up Agreement, not withdraw or cause to be withdrawn) the Subject Shares under the Offer in accordance with the terms and conditions of this Lock-Up Agreement.
(a) Upon prior written notice to the Offeror prior to the 20th calendar day after the mailing of the Offer, a Seller may transfer any of its Subject Shares:
(i) as a bona fide gift or gifts, provided that prior to such transfer the donee or donees agrees to be bound by the terms and conditions of this Agreement and delivers an executed counterpart of this Agreement prior to such transfer as if it were an original party hereto;
(ii) to any trust for the direct or indirect benefit of the undersigned or immediate family of the undersigned, provided that prior to such transfer the trustees of the trust agree to be bound by the terms and conditions of this Agreement and delivers an executed counterpart of this Agreement prior to such transfer as if it were an original party hereto; or
(iii) to any affiliate, provided that prior to such transfer the affiliate agrees to be bound by the terms and conditions of this Agreement and deliver an executed counterpart of this Agreement prior to such transfer as if it were an original party hereto.
(b) No transfers pursuant to this Section 2.5 shall relieve Offeror or such Seller, as applicable, of its obligations hereunder.
(c) For purposes of this agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin and “affiliate” shall have the meaning attributed to it under the Business Corporations Act (British Columbia).
Appears in 1 contract
Samples: Lock Up Agreement (China Minmetals Non-Ferrous Metals Co.Ltd.)
Covenants of the Sellers. 2.1 (a) Each Seller hereby agrees that he shall notthat, from during the period commencing on the date hereof and continuing until the earlier of: of (i) the termination of this Agreement pursuant to Article 5; Termination Date and (ii) the Expiry Time, except in accordance with the terms of this Agreement:
(ai) except to the extent permitted by Sections 2.1(d) and 2.2(a)hereunder, it will not take any actionact, directly or indirectly, which may in any way adversely affect in any material respect the success of the Offer or the purchase of any Company Common Shares under the Offer, but, subject to section 9 or unless such a vote would be contrary to other provisions of this agreement, otherwise may continue to vote its Subject Shares as it sees fit;
(bii) acquire direct or indirect beneficial ownership or holding of or control or direction over it will immediately cease and cause to be terminated any additional Company Shares or obtain or enter into existing discussions with any right to do so, with the exception of any Company Shares acquired pursuant to the exercise of Options;
parties (cother than BCE) grant or agree to grant any proxy or other right to the Subject Company Shares, or enter into any voting trust or pooling agreement or arrangement or enter into or subject any of such Subject Company Shares to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting thereof;any Acquisition Proposal (as defined below); and
(diii) in any manner, it will not directly or indirectly, through any officer, director, employee, representative (including for greater certainty any financial or other advisors) or agent or otherwise (as applicable), make, solicit, assist, initiate, initiate or encourage inquiries from or otherwise facilitate any inquiries, submission of proposals or offers from any person regarding other person, corporation, partnership or other business organization whatsoever (including any of its officers or employees) relating to any liquidation, dissolution, recapitalization, merger, amalgamation or acquisition or purchase of all or a material portion of the assets of, or any equity interest (including Common Shares) in, the Company or any of its subsidiaries or other similar transaction or business combination involving the Company or any of its subsidiaries (any such proposal or offer, an "Acquisition Proposal"), engage or participate in any discussions or negotiations regarding regarding, or furnish to any Acquisition Proposalother person any information with respect to, or otherwise co-operate cooperate in any way with, or assist or participate in, knowingly facilitate or encourage encourage, any effort or attempt by any other person to do or seek to do any of the foregoing; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company (the "Board of Directors") from engaging, responding in such capacity, in discussions or negotiations with his capacity as a person in response director to a any bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement third party to the Company or the Support Agreement and which (i) the Board of Directors determines after the date hereof, providing information to such third party or taking any action referred to in (i) above in his capacity as a director of the Company if, acting in good faith constitutes a Superior Acquisition Proposal on and upon the basis provided for in Section 6.2(a) of the Support Agreement; and (ii) in respect of which the Board of Directors, after receiving advice of the Company’s outside legal counsel reflected in the minutes and financial advisors of the Board of Directors to such effectwhere appropriate, determines in good faith that the failure to take such action do so would be inconsistent with its such Seller's fiduciary duties under all applicable laws;
(e) solicit or arrange or provide assistance to any other person to arrange for the solicitation of, purchases of or offers to sell Company Shares or act in concert or jointly with any other person for the purpose of acquiring Company Shares or the purpose of affecting the control as a member of the Company;
Board of Directors. For greater certainty, each such Seller acknowledges that the proviso to this subsection 4(a) shall not affect such Seller's obligation to tender (fand not withdraw) option, sell, assign, dispose of, pledge, encumber, grant a security interest in or otherwise convey any Options or the Subject Company Shares or any right or interest therein, or enter into a stock lending arrangement with respect to any Subject Company Shares, or agree to do any of the foregoing except Offer pursuant to the Offer terms and conditions of this Agreement;
agreement. If any Seller receives any Acquisition Proposal or any inquiry concerning an Acquisition Proposal (g) vote including an offer or cause invitation to enter into discussions), such Seller will promptly notify the Offeror in writing and provide to the Offeror all relevant details relating thereto, including, without limitation, the price proposed to be voted paid in connection with such Acquisition Proposal and the form of consideration to be paid; provided, however, that no Seller shall be required to disclose to the Offeror any of the Seller’s Subject Company Shares in respect of such Acquisition Proposal or any proposed action by matter relating thereto if such Acquisition Proposal was made to the Company or its shareholders Board of Directors and such Seller was informed of such Acquisition Proposal in his or affiliates her capacity as a member of the Board of Directors and, acting in good faith and upon the advice of the legal and financial advisors of the Board of Directors where appropriate, disclosure thereof by such Seller to the Offeror would be inconsistent with such Seller's fiduciary duties as a member of the Board of Directors.
(b) Each Seller agrees that during the period commencing on the date hereof and continuing until the earlier of (i) the Termination Date and (ii) the Expiry Time:
(i) it will use its reasonable best efforts in its capacity as a shareholder, and, if applicable, as a director subject to his fiduciary duties, to ensure that the business and affairs of the Company and its subsidiaries are operated in the ordinary course in substantially the same manner as conducted prior to the date hereof; and
(ii) it shall not sell, transfer or encumber in any way any Subject Shares or Options owned by it or relinquish or modify its right to vote any Subject Shares or any other person in a manner which would reasonably be regarded as likely to prevent or delay the successful completion securities of the Offer;Company.
(hc) Each Seller agrees that, except as required by applicable lawslaw, such Seller will not prior to the public announcement by the Parent Offeror of its intention to cause the Offeror to make terms of the Offer, directly or indirectly, disclose to any person, firm or corporation (other than the Company and the financial and legal advisors of the Company) the existence of the terms and conditions of this Agreementagreement, or the possibility of the Parent or the Offeror making the Offer being made or any terms or conditions or other information concerning any possible offer to be made for the Offer; orCommon Shares.
(id) not take any action to encourage or assist any other person to do any of the prohibited acts referred to in foregoing provisions of this Section 2.1.
2.2 Each Seller hereby covenants and agrees that he shall, from the date hereof until the earlier of: (i) the termination of this Agreement pursuant to Article 5; and (ii) the Expiry Time, except in accordance with the terms of this Agreement:
(a) immediately cease any existing solicitations, discussions or negotiations he is engaged in with any person other than the Parent and the Offeror with respect use their reasonable best efforts to any potential Acquisition Proposal and request the return or destruction of all confidential information provided in connection therewith; provided, however, that the foregoing shall not prevent a Seller who is a member cause Jean C. Monty to be appointed as Chairman of the Board of Directors axx xx xxxx Xxolo Guidi and Christina Gold appointed as co-Chief Executive Officexx xx xxx Xompanx xxxx Xxxxxxx Sirois' resignation.
(e) Kenny A. Troutt agrees that frxx xxx xxxxx xhe date hereof to and incxxxxxx Xxxxxxxx 15, 2002, he shall be available to participate in a minimum of 20 presentations per year regarding the Company's business with management of Teleglobe or its subsidiaries, to potential and existing external independent representatives, which services shall be provided in accordance with the consulting agreement (the "Troutt Consulting Agreement") dated September 14, 1999 between Kenny X. Xxxutt and the Company and certain of its subsidiaries. The Xxxxxxx xxxxxx acknowledges and agrees that it is a senior officer the intention of the parties that the Troutt Consulting Agreement shall continue in full force and effect axxxx xhe date hereof.
(f) Upon the purchase by the Offeror of the Subject Shares, the Troutt Group acknowledges that BCE shall be entitled to designate all xxxxxrs of the Board of Directors currently designated as Excel Directors (as defined in the articles of the Company), and any committees thereof and the Troutt Group shall, upon request by BCE, but subject to applicable lax, xxxmptly use their best efforts to (i) expand the Board of Directors, (ii) secure the resignations of such number of directors, (iii) cause the Excel Directors to nominate as directors of the Company from engagingand/or (iv) take all other action (including voting as directors of the Company), in such capacity, in discussions each case as is necessary to enable BCE's designees to be elected or negotiations with a person in response appointed to a bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support Agreement;and to cause BCE's designees to be so elected or appointed.
(b) as soon as reasonably practicable notify the Parent and the Offeror of: (i) Each Seller agrees to execute and jointly file with the Offeror, an election pursuant to section 85 of the Income Tax Act (Canada) (the "Canadian Income Tax Act") in which election such Seller will elect the cost amount of the Subject Shares which shall be such Seller's proceeds of disposition and the Offeror's cost of the Common Shares exchanged for BCE Shares, provided such amount is within the limits prescribed by section 85 of the Canadian Income Tax Act. Such Seller shall provide the Offeror with the completed election form no later than January 15, 2001. The Offeror will execute any proposal, inquiry, offer (or any amendment thereto) or request that completed election form received and file the Seller receives, or of which form with the Seller becomes aware, that relates to, or constitutes, or which the Seller reasonably believes could lead to, a bona fide Acquisition Proposal; or appropriate tax authority.
(ii) BCE agrees to indemnify and save harmless the Troutt Group from any request that losses, damages, liabilities, costs, expenses, xxxxx, interest and penalties (including, without limitation, reasonable legal and other professional fees and disbursements) ("Losses") resulting from the Seller receives for discussions or negotiations relating Troutt Group's agreement to file an Acquisition Proposal or any request for non-public information relating to the Company or its Subsidiaries or any of their respective mineral properties by any person or entity that informs the Seller that it is considering making, or has made, an Acquisition Proposal. Such notice to the Parent and the Offeror shall be made, from time to time, orally and in writing and shall include a description election under section 85 of the terms and conditions Xxx Xxt pursuant to this subsection 4(g).
(iii) In the event that any member of the Troutt Group (an "Indemnified Party") shall become aware of any such proposalclaim, inquiry, offer xxxxeeding or other matter (including any amendment thereto) or request and shall include copies of any such proposal, inquiry, offer or request or any amendment to any of the foregoing; and
(c) exercise the voting rights attaching to the Subject Company Shares and otherwise use the Seller’s commercially reasonable efforts in the Seller’s capacity as a shareholder of the Company to oppose any proposed action by the Company, its shareholders, its Subsidiaries or any other person: (i"Claim") in respect of any mergerwhich BCE agreed to indemnify the Indemnified Party pursuant to this agreement, take-over bid, amalgamation, plan of arrangement, business combination or similar transaction involving the Company or its Subsidiaries, other than Indemnified Party shall promptly give written notice thereof to BCE. Such notice shall specify with reasonable particularity (to the Offer; (iiextent that the information is available) which would reasonably be regarded as being directed towards or likely to prevent or delay the take-up of and payment factual basis for the Subject Company Shares deposited under Claim and the Offer or the successful completion amount of the OfferClaim, including without limitation if known. If, through the fault of the Indemnified Party, BCE does not receive notice of any amendment Claim in time to contest effectively the determination of any liability susceptible of being contested, BCE shall be entitled to set off against the amount claimed by the Indemnified Party the amount of any Losses incurred by BCE resulting directly from the Indemnified Party's failure to give such notice on a timely basis.
(iv) Following receipt of notice from the Indemnified Party of the Claim, BCE shall have 60 days to make such investigation of the Claim as is considered necessary or desirable. For the purpose of such investigation, the Indemnified Party shall make available to BCE the information relied upon by the Indemnified Party to substantiate the Claim, together with all such other information as BCE may reasonably request. If both parties agree at or prior to the articles expiration of such 60-day period (or by-laws any mutually agreed upon extension thereof) to the validity and amount of such Claim, BCE shall immediately pay to the Indemnified Party the full agreed upon amount of the Company or its corporate structure; or Claim.
(iiiv) BCE shall pay to the Indemnified Party all amounts for which would reasonably be expected BCE is liable pursuant to result in a Company Material Adverse Effect. In connection therewith, this subsection 4(g) promptly after the Seller hereby appoints Indemnified Party incurs the Parent as its attorney in fact (which appointment is unconditional, irrevocable (subject to Article 5), and is coupled with an interest) for and on his behalf to execute a proxy appointing a person designated by the Parent to attend and act on behalf of the Seller at any meeting of shareholders of the Company Loss in respect of any of the matters referred to in this Section 2.2(c); provided that if, pursuant to this power of attorney, the Parent has executed and not revoked a proxy in respect of which such a meeting, which proxy has been accepted by the Company, then in such circumstances the Seller shall not be responsible for voting under this Section 2.2(c). The Parent shall advise the Seller upon executing any proxies in respect of the Subject Company Shares held by the Sellerliability arises.
2.3 Each Seller covenants to co-operate with the Parent and the Offeror in making all requisite regulatory filings.
Appears in 1 contract
Samples: Acquisition Agreement (Bce Inc)
Covenants of the Sellers. 2.1 Each Seller hereby agrees that he shall notcovenants, from with respect to itself and its Affiliated Persons, to the Purchaser as follows:
6.1 From the date hereof until the earlier of: (i) the termination of this Agreement pursuant to Article 5; and (ii) the Expiry Time, except in accordance with the terms of this Agreement:
(a) except to the extent permitted by Sections 2.1(d) and 2.2(a), take any actionsuch person will not, directly or indirectly, which may alone or in concert with others, (a) acquire or offer to acquire, seek, propose or agree to acquire, by means of a purchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of any Voting Securities of the Fund, including rights or options to acquire such ownership, unless such person shall acquire such Voting Securities pursuant to all of the conditions of Section 6.2 at the time of the acquisition; (b) initiate or encourage, or in any way adversely affect in participate in, any material respect the success litigation, or seek to initiate or encourage any regulatory action or proceeding, against or on behalf of the Offer Fund or the purchase any of any Company Shares under the Offer;
(b) acquire direct or indirect beneficial ownership or holding of or control or direction over any additional Company Shares or obtain or enter into any right to do so, with the exception of any Company Shares acquired pursuant to the exercise of Options;
its Affiliated Persons; (c) grant make, or agree in any way participate in, any “solicitation” of “proxies” (as such terms are defined in Rule 14a-1 of Regulation 14A promulgated by the Securities and Exchange Commission pursuant to grant Section 14 of the Securities Exchange Act of 1934, disregarding clause (iv) of Rule 14a-1(l)(2) and including any proxy or other right solicitation that would otherwise be exempt pursuant to Rule 14a-2(b)), relating to the Subject Company SharesFund’s Voting Securities; call, or enter into in any way participate in a call for, any meeting of stockholders of the Fund, or for any action by written consent of stockholders; request, or take any action to obtain or retain any list of holders of any securities of the Fund or otherwise seek to inspect any books or records of the Fund; initiate or propose any stockholder proposal or participate in the making of, or solicit stockholders for the approval of, one or more stockholder proposals relating to the Fund; (d) deposit any Voting Securities in a voting trust or pooling subject them to any voting agreement or arrangement arrangements; (e) form, join or enter into or subject in any of such Subject Company Shares to any other agreement, arrangement, understanding or commitment, formal or informal, way participate in a group with respect to any Voting Securities (or any securities the ownership of which would make the owner thereof a beneficial owner of Voting Securities); (f) otherwise act to control or influence the Fund or the management, board of directors, policies or affairs of the Fund including, without limitation, (i) soliciting or proposing to effect or negotiate any amendment to the bylaws of the Fund, or any form of business combination, restructuring, recapitalization, open-ending, liquidation, repurchase of shares or other extraordinary transaction involving the Fund, its securities or assets or (ii) proposing any candidates for election to the board of directors or otherwise seeking board representation or the removal of any directors or a change in the composition or size of the board of directors of the Fund; (g) take any action or disclose any intent, purpose, plan or proposal with respect to this Agreement or the Fund, its Affiliated Persons or the management, policies or affairs or securities or assets of the Fund or its Affiliated Persons that is inconsistent with this Agreement, including any action, intent, purpose, plan or proposal that is conditioned on, or would require, waiver, amendment, nullification or invalidation of any provision of this Agreement, or take any action that could require the Fund or any of its Affiliated Persons to make any public disclosure relating to the voting thereof;
any such intent, purpose, plan, proposal or condition; or (dh) in any manner, directly or indirectly, through any officer, director, employee, representative (including for greater certainty any financial or other advisors) or agent or otherwise (as applicable), make, solicit, assist, initiateadvise, encourage or otherwise facilitate any inquiries, proposals or offers from have discussions with any person regarding an Acquisition Proposalwith respect to, engage in any discussions or negotiations regarding any Acquisition Proposal, or otherwise co-operate in any way with, or assist or participate in, knowingly facilitate or encourage any effort or attempt by any other person to do or seek to do do, any of the foregoing; provided.
6.2 Section 6.1 notwithstanding, howeverany such person may acquire Voting Securities of the Fund if such person immediately notifies the Fund in writing of the acquisition of such Voting Securities, that specifying the foregoing shall not prevent name in which such Voting Securities are owned, and such person delivers to the Fund a Seller who is a member written undertaking to vote such Voting Securities in all instances in accordance with the recommendations of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response Fund.
6.3 Each Seller will use best efforts to a bona fide written Acquisition Proposal made by a such person which did not result from a breach cause its Affiliated Persons to observe each provision of this Agreement or as if such Affiliated Person were a party to this Agreement.
6.4 Each Seller agrees that the Support Agreement and which Purchaser, without prejudice to any rights to judicial relief the Purchaser may otherwise have, shall be entitled to seek equitable relief, including injunctive relief, in the event of any breach of the provisions of this Agreement. Each Seller agrees that (i) neither he/it nor, subject to Section 6.3, any of his/its Affiliated Persons will oppose the Board granting of Directors determines in good faith constitutes a Superior Acquisition Proposal such relief on the basis provided for in Section 6.2(a) of that the Support Agreement; Purchaser has an adequate remedy at law and (ii) in respect of which the Board of Directorseach Seller, after receiving advice of the Company’s outside legal counsel reflected in the minutes of the Board of Directors to such effectjointly and severally, determines in good faith will pay any reasonable fees that the Purchaser may incur in enforcing this Agreement.
6.5 Each Seller agrees that no failure to take such action would be inconsistent with its fiduciary duties under all applicable laws;
(e) solicit or arrange delay by the Purchaser in exercising any right, power or provide assistance to privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other person to arrange for the solicitation of, purchases of or offers to sell Company Shares or act in concert or jointly with any other person for the purpose of acquiring Company Shares or the purpose of affecting the control of the Company;
(f) option, sell, assign, dispose of, pledge, encumber, grant a security interest in or otherwise convey any Options or Subject Company Shares or any right or interest therein, or enter into a stock lending arrangement with respect to any Subject Company Shares, or agree to do any of the foregoing except pursuant to the Offer and this Agreement;
(g) vote or cause to be voted any of the Seller’s Subject Company Shares in respect of any proposed action by the Company or its shareholders or affiliates or any other person in a manner which would reasonably be regarded as likely to prevent or delay the successful completion of the Offer;
(h) except as required by applicable laws, prior to the public announcement by the Parent of its intention to cause the Offeror to make the Offer, directly or indirectly, disclose to any person, firm or corporation (other than the Company and the financial and legal advisors of the Company) the existence of the terms and conditions of this Agreement, or the possibility of the Parent or the Offeror making the Offer or any terms or conditions or other information concerning the Offer; or
(i) not take any action to encourage or assist any other person to do any of the prohibited acts referred to in foregoing provisions of this Section 2.1.
2.2 Each Seller hereby agrees that he shall, from the date hereof until the earlier of: (i) the termination of this Agreement pursuant to Article 5; and (ii) the Expiry Time, except in accordance with the terms of this Agreement:
(a) immediately cease any existing solicitations, discussions or negotiations he is engaged in with any person other than the Parent and the Offeror with respect to any potential Acquisition Proposal and request the return or destruction of all confidential information provided in connection therewith; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support Agreement;
(b) as soon as reasonably practicable notify the Parent and the Offeror of: (i) any proposal, inquiry, offer (or any amendment thereto) or request that the Seller receives, or of which the Seller becomes aware, that relates to, or constitutes, or which the Seller reasonably believes could lead to, a bona fide Acquisition Proposal; or (ii) any request that the Seller receives for discussions or negotiations relating to an Acquisition Proposal or any request for non-public information relating to the Company or its Subsidiaries or any of their respective mineral properties by any person or entity that informs the Seller that it is considering making, or has made, an Acquisition Proposal. Such notice to the Parent and the Offeror shall be made, from time to time, orally and in writing and shall include a description of the terms and conditions further exercise of any such proposalright, inquiry, offer (including any amendment thereto) power or request and shall include copies of any such proposal, inquiry, offer or request or any amendment to any of the foregoing; and
(c) exercise the voting rights attaching to the Subject Company Shares and otherwise use the Seller’s commercially reasonable efforts in the Seller’s capacity as a shareholder of the Company to oppose any proposed action by the Company, its shareholders, its Subsidiaries or any other person: (i) in respect of any merger, take-over bid, amalgamation, plan of arrangement, business combination or similar transaction involving the Company or its Subsidiaries, other than the Offer; (ii) which would reasonably be regarded as being directed towards or likely to prevent or delay the take-up of and payment for the Subject Company Shares deposited under the Offer or the successful completion of the Offer, including without limitation any amendment to the articles or by-laws of the Company or its corporate structure; or (iii) which would reasonably be expected to result in a Company Material Adverse Effect. In connection therewith, the Seller hereby appoints the Parent as its attorney in fact (which appointment is unconditional, irrevocable (subject to Article 5), and is coupled with an interest) for and on his behalf to execute a proxy appointing a person designated by the Parent to attend and act on behalf of the Seller at any meeting of shareholders of the Company in respect of any of the matters referred to in this Section 2.2(c); provided that if, pursuant to this power of attorney, the Parent has executed and not revoked a proxy in respect of such a meeting, which proxy has been accepted by the Company, then in such circumstances the Seller shall not be responsible for voting under this Section 2.2(c). The Parent shall advise the Seller upon executing any proxies in respect of the Subject Company Shares held by the Sellerprivilege.
2.3 Each Seller covenants to co-operate with the Parent and the Offeror in making all requisite regulatory filings.
Appears in 1 contract
Samples: Stock Purchase Agreement (Seligman Select Municipal Fund Inc)
Covenants of the Sellers. 2.1 Each Seller (a) The Sellers hereby agrees covenant and agree, severally and not jointly and severally, that he they shall not, from the date hereof until the earlier of: (iI) the termination of this Agreement pursuant to Article 54; and (iiII) the date and time the Offer, as it may be extended by the Offeror from time to time, expires (the “Expiry Time, ”); except in accordance with the terms of this Agreement:
(a) except to the extent permitted by Sections 2.1(d) and 2.2(a), take any action, directly or indirectly, which may in any way adversely affect in any material respect the success of the Offer or the purchase of any Company Shares under the Offer;
(b) acquire direct or indirect beneficial ownership or holding of or control or direction over any additional Company Shares or obtain or enter into any right to do so, with the exception of any Company Shares acquired pursuant to the exercise of Options;
(ci) grant or agree to grant any proxy or other right to the Subject Company Shares, or enter into any voting trust or pooling agreement or arrangement or enter into or subject any of such Subject Company Shares to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting thereof;
(dii) in any manner, directly or indirectly, through any officer, director, employee, representative (including for greater certainty any financial or other advisors) or advisor, representative, agent or otherwise (as applicable), make, solicit, assist, initiate, encourage encourage, or otherwise facilitate any inquiries, the submission of proposals or offers from any person other person, body corporate, partnership or other business organization whatsoever regarding an Acquisition Proposala potential competing or superior proposal for the acquisition of the Subject Shares (whether by way of take-over bid, engage asset sale, merger, amalgamation, arrangement, reorganization or other business combination) (a Competing Bid), participate in any material discussions or negotiations regarding any Acquisition ProposalCompeting Bid, or otherwise co-operate cooperate in any way with, or assist or participate in, knowingly facilitate or encourage encourage, any effort or attempt by any other person to do or seek to do any of the foregoing; provided, however, that the foregoing shall not prevent a Seller who is a member including by depositing or voting any of the Board Sellers’ Shares in favour of Directors or is a senior officer of the Company from engaging, in any such capacity, in discussions or negotiations with a person in response to a bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which (i) the Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support Agreement; and (ii) in respect of which the Board of Directors, after receiving advice of the Company’s outside legal counsel reflected in the minutes of the Board of Directors to such effect, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties under all applicable lawsCompeting Bid;
(e) solicit or arrange or provide assistance to any other person to arrange for the solicitation of, purchases of or offers to sell Company Shares or act in concert or jointly with any other person for the purpose of acquiring Company Shares or the purpose of affecting the control of the Company;
(fiii) option, sell, assigntransfer, dispose of, pledge, encumber, grant a security interest in or otherwise convey any Options or Subject Company Shares or any right or interest therein, or enter into a stock lending arrangement with respect to any Subject Company Shares, or agree to do any of the foregoing except pursuant to the Offer and this Agreement;
(g) vote or cause to be voted any of the Seller’s Subject Company Shares in respect of any proposed action by the Company or its shareholders or affiliates or any other person in a manner which would reasonably be regarded as likely to prevent or delay the successful completion of the Offer;
(hiv) acquire any additional number of Subject Shares or securities convertible into or exchangeable for Subject Shares, except to the extent that doing so would be in full compliance with the Unites States Securities and Exchange Act of 1934, as amended, and the rules and regulations thereunder;
(v) except as required by applicable lawslaw and subject to the prior notice and consultation obligations contained in Section 6.7, prior to the public announcement by the Parent of its intention to cause the Offeror to make the Offer, directly or indirectly, disclose to any person, firm or corporation (other than the Company and the financial and legal advisors of the Company) the existence of the terms and conditions of this Agreement, or the possibility of the Parent or the Offeror making the Offer or any terms or conditions or other information concerning the Offer; orand
(ivi) not take any action to encourage or assist any other person to do any of the prohibited acts referred to in foregoing provisions of this Section 2.1Subsection 3.1(a).
2.2 Each Seller (b) The Sellers hereby agrees covenant and agree, severally and not jointly and severally, that he they shall, from the date hereof until the earlier of: of (iI) the termination of this Agreement pursuant to Article 5; 4, and (iiII) the Expiry Time, except in accordance with the terms of this Agreement:
(ai) immediately cease any existing solicitations, discussions or negotiations he it is engaged in with any person parties (other than the Parent and the Offeror Offeror) with respect to any potential Acquisition Proposal and request the return or destruction of all confidential information provided in connection therewith; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support Agreement;
(b) as soon as reasonably practicable notify the Parent and the Offeror of: (i) any proposal, inquiry, offer (or any amendment thereto) or request that the Seller receives, or of which the Seller becomes aware, that relates to, or constitutes, or which the Seller reasonably believes could lead to, a bona fide Acquisition Proposal; or (ii) any request that the Seller receives for discussions or negotiations relating to an Acquisition Proposal or any request for non-public information relating to the Company or its Subsidiaries or any of their respective mineral properties by any person or entity that informs the Seller that it is considering making, or has made, an Acquisition Proposal. Such notice to the Parent and the Offeror shall be made, from time to time, orally and in writing and shall include a description of the terms and conditions of any such proposal, inquiry, offer (including any amendment thereto) or request and shall include copies of any such proposal, inquiry, offer or request or any amendment to any of the foregoingCompeting Bid; and
(cii) use their reasonable commercial efforts to assist the Offeror to successfully complete the Offer and any subsequent acquisition transaction;
(iii) exercise the voting rights attaching to the Subject Company Sellers’ Shares and otherwise use the Seller’s commercially reasonable efforts in the Seller’s capacity as a shareholder of the Company to oppose any proposed action by the CompanyFibrek, its directors, officers and/or shareholders, any of its Subsidiaries subsidiaries or any other person: :
(iA) in respect of any amalgamation, merger, sale of Fibrek’s or its affiliates’ or associates’ assets, take-over bid, amalgamationissuer bid, plan of arrangement, reorganization, recapitalization, issuance of shares, equity or voting securities or convertible or exchangeable securities or other business combination or similar transaction involving the Company Fibrek or any of its Subsidiaries, subsidiaries other than the Offer; ;
(iiB) which would reasonably be regarded as being directed towards or likely to prevent or delay the take-up of and payment for of the Subject Company Sellers’ Shares deposited under the Offer or the successful completion of the Offer, including without limitation any amendment to the articles or by-laws constating documents of the Company Fibrek, its subsidiaries or its corporate organizational structure;
(C) in respect of any new shareholder rights plan or “poison pill” subsequent to the date of this Agreement; or or
(iiiD) which would reasonably be expected to result in a Company Material Adverse Effect. In connection therewith, the Seller hereby appoints the Parent as its attorney in fact (which appointment is unconditional, irrevocable (subject to Article 5), and is coupled with an interest) for and on his behalf to execute a proxy appointing a person designated by the Parent to attend and act on behalf of the Seller at any meeting of shareholders of the Company material adverse effect in respect of Fibrek.
(iv) promptly notify and provide to the Offeror a copy of any Competing Bid or proposal or document related thereto provided to any of the matters referred Sellers, or any amendments to in this Section 2.2(c)the foregoing; provided that if, pursuant to this power of attorney, the Parent has executed and
(v) deposit and not revoked a proxy in respect of such a meeting, which proxy has been accepted by the Company, then in such circumstances the Seller shall not be responsible for voting under this Section 2.2(c). The Parent shall advise the Seller upon executing any proxies in respect withdraw all of the Subject Company Sellers’ Shares, together with a duly completed and executed letter of transmittal or notice of guaranteed delivery (or take all actions to cause the Sellers’ Shares held by to be electronically deposited through the SellerCDSX system), with the depositary specified in the Circular in accordance with all of the terms thereof and all of the terms of this Agreement.
2.3 Each Seller covenants (c) The Sellers covenant, severally and not jointly and severally, to co-operate with the Parent and the Offeror in making all requisite regulatory filingsfilings in respect of the Offer.
Appears in 1 contract
Covenants of the Sellers. 2.1 Each Seller hereby agrees that he shall notagrees, from the date hereof until the earlier of: (i) the termination of this Lock-Up Agreement pursuant to Article 56; and (ii) the Expiry Effective Time, except in accordance with the terms of this Lock-Up Agreement, not to:
(a) except to the extent permitted by Sections 2.1(d) and 2.2(a), take any action, directly or indirectly, which may in any way adversely affect in any material respect the success of the Offer or the purchase of any Company Shares under the Offer;
(b) acquire direct or indirect beneficial ownership or holding control of or control or direction over any additional Company Shares or Options or obtain or enter into any right to do so, with the exception of any Company Shares acquired pursuant to the exercise of OptionsOptions as contemplated by Section 3.2 hereof and any Bonus Shares listed immediately below such Seller's Acceptance;
(b) 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 Options or Subject Shares or any right or interest in either, or agree to do any of the foregoing except pursuant to the Offer or pursuant to Section 2.5;
(c) grant or agree to grant any proxy or other right to the Subject Company Shares, or enter into any voting trust or pooling agreement or arrangement or enter into or subject any of such Subject Company Shares to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting thereof;
(d) in any manner, directly or indirectly, including through any officer, director, employee, representative (including for greater certainty any financial or other advisors) or agent or otherwise (as applicable), makeRepresentative, solicit, assist, initiate, or knowingly encourage or otherwise facilitate any inquiries, proposals proposals, offers or offers public announcements (or the submission or initiation of any of the foregoing) from any person regarding an any Acquisition Proposal, engage in any negotiations concerning, or provide any information to, or have any discussions with or negotiations regarding otherwise cooperate with, any person relating to an Acquisition Proposal, or otherwise co-operate in any way with, or assist or participate in, knowingly facilitate or knowingly encourage any effort or attempt by any other person to do make or seek to do any of the foregoing; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written implement an Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which (i) the Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support Agreement; and (ii) in respect of which the Board of Directors, after receiving advice of the Company’s outside legal counsel reflected in the minutes of the Board of Directors to such effect, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties under all applicable lawsProposal;
(e) solicit or arrange or provide assistance to any other person to arrange for the solicitation of, purchases of or offers to sell Company Shares or act in concert or jointly with any other person for the purpose of acquiring Company Shares or for the purpose of affecting the control of the Company;
(f) option, sell, assign, dispose of, pledge, encumber, grant a security interest deposit or cause to be deposited such Seller's Subject Shares under any Acquisition Proposal nor support any Acquisition Proposal in or otherwise convey any Options or Subject Company Shares or any right or interest therein, or enter into a stock lending arrangement with respect to any Subject Company Shares, or agree to do any of the foregoing except pursuant to the Offer and this Agreementmanner whatsoever;
(g) vote or cause to be voted any of the Seller’s Subject Company Shares in respect of any proposed action by the Company or its shareholders or affiliates or any other person in a manner which would reasonably be regarded as likely to prevent or delay the successful completion of the Offer;
(h) except as required by applicable lawsLaws, prior to the public announcement by the Parent Offeror of its intention to cause the Offeror to make the Offer, directly or indirectly, disclose to any person, firm or corporation person (other than the Company and the its financial and legal advisors of the Companyadvisors) the existence of this Lock-Up Agreement or the terms and conditions of this Lock-Up Agreement, or the possibility of the Parent or the Offeror making the Offer or any terms or conditions or other information concerning the Offer;
(h) 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 Support Agreement; orand
(i) not 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 2.1.
2.2 Each Seller hereby agrees that he shallagrees, from the date hereof until the earlier of: (i) the termination of this Lock-Up Agreement pursuant to Article 56; and (ii) the Expiry Effective Time, except in accordance with the terms of this Lock-Up Agreement:
(a) , to immediately cease, cause its Representatives to cease and cause to be terminated any existing solicitations, discussions or negotiations he is engaged in with any person parties (other than the Parent and Offeror or any Representative of the Offeror Offeror) with respect to any Acquisition Proposal or any potential Acquisition Proposal and request the return or destruction of Proposal.
2.3 Each Seller covenants to co-operate with Offeror in making all confidential information provided requisite regulatory filings.
2.4 Nothing in connection therewith; provided, however, that the foregoing this Article 2 shall not prevent a Seller who is a member of the Board board of Directors directors of the Company or is a senior officer of the Company from engaging, in such capacitySeller's capacity as a director or senior officer of the Company, in discussions or negotiations with a person in response to a an unsolicited bona fide written Acquisition Proposal made in writing to the board of directors of the Company by a such person (which Acquisition Proposal did not result from a breach of this Lock-Up Agreement or the Support Agreement and which Board of Directors determines Agreement) in good faith constitutes a Superior Acquisition Proposal on circumstances where the basis provided for in Section 6.2(aCompany is permitted by section 3.3(a) of the Support Agreement;
(b) as soon as reasonably practicable notify the Parent and the Offeror of: (i) any proposal, inquiry, offer (or any amendment thereto) or request that the Seller receives, or of which the Seller becomes aware, that relates to, or constitutes, or which the Seller reasonably believes could lead to, a bona fide Acquisition Proposal; or (ii) any request that the Seller receives for Agreement to engage in such discussions or negotiations relating negotiations. For greater certainty, each Seller acknowledges that this Section 2.4 shall not affect such Seller's obligation to an Acquisition Proposal deposit or any request for noncause to be deposited (and, except as permitted by this Lock-public information relating Up Agreement, not withdraw or cause to be withdrawn) the Company or its Subsidiaries or any of their respective mineral properties by any person or entity that informs Subject Shares under the Seller that it is considering making, or has made, an Acquisition Proposal. Such notice to the Parent and the Offeror shall be made, from time to time, orally and Offer in writing and shall include a description of accordance with the terms and conditions of this Lock-Up Agreement.
(a) Upon prior notice to the Offeror prior to the 15th calendar day after the mailing of the Offer, a Seller may transfer any of its Subject Shares;
(i) as a bona fide gift or gifts, provided that prior to such proposal, inquiry, offer transfer the donee or donees agrees to be bound by the terms and conditions of this Agreement and delivers an executed counterpart of this Agreement prior to such transfer as if it were an original party hereto;
(including any amendment theretoi) or request and shall include copies of any such proposal, inquiry, offer or request or any amendment (ii) to any trust for the direct or indirect benefit of the foregoingundersigned or immediate family of the undersigned, provided that prior to such transfer the trustees of the trust agree to be bound by the terms and conditions of this Agreement and delivers an executed counterpart of this Agreement prior to such transfer as if it were an original party hereto; andor
(iii) to any affiliate, provided that prior to such transfer the affiliate agrees to be bound by the terms and conditions of this Agreement and deliver an executed counterpart of this Agreement prior to such transfer as if it were an original party hereto.
(b) No transfers pursuant to this Section 2.5 shall relieve Offeror or such Seller, as applicable, of its obligations hereunder.
(c) exercise For purposes of this agreement, "immediate family" shall mean any relationship by blood, marriage or adoption, not more remote than first cousin and "affiliate" shall have the voting rights attaching meaning attributed to the Subject Company Shares and otherwise use the Seller’s commercially reasonable efforts in the Seller’s capacity as a shareholder of the Company to oppose any proposed action by the Company, its shareholders, its Subsidiaries or any other person: (i) in respect of any merger, take-over bid, amalgamation, plan of arrangement, business combination or similar transaction involving the Company or its Subsidiaries, other than the Offer; (ii) which would reasonably be regarded as being directed towards or likely to prevent or delay the take-up of and payment for the Subject Company Shares deposited it under the Offer or the successful completion of the Offer, including without limitation any amendment to the articles or by-laws of the Company or its corporate structure; or Business Corporations Act (iii) which would reasonably be expected to result in a Company Material Adverse Effect. In connection therewith, the Seller hereby appoints the Parent as its attorney in fact (which appointment is unconditional, irrevocable (subject to Article 5British Columbia), and is coupled with an interest) for and on his behalf to execute a proxy appointing a person designated by the Parent to attend and act on behalf of the Seller at any meeting of shareholders of the Company in respect of any of the matters referred to in this Section 2.2(c); provided that if, pursuant to this power of attorney, the Parent has executed and not revoked a proxy in respect of such a meeting, which proxy has been accepted by the Company, then in such circumstances the Seller shall not be responsible for voting under this Section 2.2(c). The Parent shall advise the Seller upon executing any proxies in respect of the Subject Company Shares held by the Seller.
2.3 Each Seller covenants to co-operate with the Parent and the Offeror in making all requisite regulatory filings.
Appears in 1 contract
Covenants of the Sellers. 2.1 Each Seller hereby agrees that he shall notagrees, from the date hereof until the earlier of: (i) the termination of this Lock-Up Agreement pursuant to Article 56; and (ii) the Expiry Effective Time, except in accordance with the terms of this Lock-Up Agreement, not to:
(a) except to the extent permitted by Sections 2.1(d) and 2.2(a), take any action, directly or indirectly, which may in any way adversely affect in any material respect the success of the Offer or the purchase of any Company Shares under the Offer;
(b) acquire direct or indirect beneficial ownership or holding control of or control or direction over any additional Company Shares or Options or obtain or enter into any right to do so, with the exception of any Company Shares acquired pursuant to the exercise of OptionsOptions as contemplated by Section 3.2 hereof and any Bonus Shares listed immediately below such Seller’s Acceptance;
(b) 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 Options or Subject Shares or any right or interest in either, or agree to do any of the foregoing except pursuant to the Offer or pursuant to Section 2.5;
(c) grant or agree to grant any proxy or other right to the Subject Company Shares, or enter into any voting trust or pooling agreement or arrangement or enter into or subject any of such Subject Company Shares to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting thereof;
(d) in any manner, directly or indirectly, including through any officer, director, employee, representative (including for greater certainty any financial or other advisors) or agent or otherwise (as applicable), makeRepresentative, solicit, assist, initiate, or knowingly encourage or otherwise facilitate any inquiries, proposals proposals, offers or offers public announcements (or the submission or initiation of any of the foregoing) from any person regarding an any Acquisition Proposal, engage in any negotiations concerning, or provide any information to, or have any discussions with or negotiations regarding otherwise cooperate with, any person relating to an Acquisition Proposal, or otherwise co-operate in any way with, or assist or participate in, knowingly facilitate or knowingly encourage any effort or attempt by any other person to do make or seek to do any of the foregoing; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written implement an Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which (i) the Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support Agreement; and (ii) in respect of which the Board of Directors, after receiving advice of the Company’s outside legal counsel reflected in the minutes of the Board of Directors to such effect, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties under all applicable lawsProposal;
(e) solicit or arrange or provide assistance to any other person to arrange for the solicitation of, purchases of or offers to sell Company Shares or act in concert or jointly with any other person for the purpose of acquiring Company Shares or for the purpose of affecting the control of the Company;
(f) option, sell, assign, dispose of, pledge, encumber, grant a security interest deposit or cause to be deposited such Seller’s Subject Shares under any Acquisition Proposal nor support any Acquisition Proposal in or otherwise convey any Options or Subject Company Shares or any right or interest therein, or enter into a stock lending arrangement with respect to any Subject Company Shares, or agree to do any of the foregoing except pursuant to the Offer and this Agreementmanner whatsoever;
(g) vote or cause to be voted any of the Seller’s Subject Company Shares in respect of any proposed action by the Company or its shareholders or affiliates or any other person in a manner which would reasonably be regarded as likely to prevent or delay the successful completion of the Offer;
(h) except as required by applicable lawsLaws, prior to the public announcement by the Parent Offeror of its intention to cause the Offeror to make the Offer, directly or indirectly, disclose to any person, firm or corporation person (other than the Company and the its financial and legal advisors of the Companyadvisors) the existence of this Lock-Up Agreement or the terms and conditions of this Lock-Up Agreement, or the possibility of the Parent or the Offeror making the Offer or any terms or conditions or other information concerning the Offer;
(h) 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 Support Agreement; orand
(i) not 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 2.1.
2.2 Each Seller hereby agrees that he shallagrees, from the date hereof until the earlier of: (i) the termination of this Lock-Up Agreement pursuant to Article 56; and (ii) the Expiry Effective Time, except in accordance with the terms of this Lock-Up Agreement, to:
(a) immediately cease, cause its Representatives to cease and cause to be terminated any existing solicitations, discussions or negotiations he is engaged in with any person parties (other than the Parent and Offeror or any Representative of the Offeror Offeror) with respect to any Acquisition Proposal or any potential Acquisition Proposal and request the return or destruction of all confidential information provided in connection therewith; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support AgreementProposal;
(b) as soon as reasonably practicable promptly notify Offeror, at first orally and then in writing, of all Acquisition Proposals currently under consideration or of which the Parent Seller is aware;
(c) promptly (and the Offeror in any event within 24 hours after it has received any proposal, inquiry, offer or request) notify Offeror, at first orally and then in writing of: (i) any proposal, inquiry, offer (or request, or any amendment theretoto any of the foregoing (each, a “Third Party Inquiry”) or request that the Seller receives, receives or of which the Seller becomes aware, aware that relates to, constitutes or constitutes, or which the Seller reasonably believes could lead to, a bona fide to an Acquisition Proposal; or (ii) any request that the Seller receives for discussions or negotiations relating to an Acquisition Proposal or any request for non-public information relating to the Company or its Subsidiaries or any of their respective mineral properties by any person or entity that informs the Seller that it is considering makingcontractual or legal rights or for access to properties, books and records or has made, an Acquisition Proposala list of Shareholders. Such notice to the Parent and the Offeror shall be made, from time to time, orally and in writing and shall include a description of the terms and conditions of, and the identity of the person making, any such proposal, inquiry, offer (including any amendment thereto) or request Third Party Inquiry and shall include copies of such Third Party Inquiry and any other written correspondence related to such proposal, inquiry, offer or request or any amendment to any Third Party Inquiry. The Seller shall also provide such other details of the foregoingThird Party Inquiry as Offeror may reasonably request. The Seller shall keep Offeror promptly and fully informed of the status, including any change to the material terms, of any Third Party Inquiry, and will respond promptly to all inquiries by Offeror with respect thereto; and
(cd) exercise the voting rights attaching to the Subject Company Shares and otherwise use the Seller’s commercially reasonable efforts in the Seller’s capacity as a shareholder of the Company Shareholder to oppose any proposed action by the CompanyCompany or its Subsidiaries, its shareholders, its Subsidiaries the Shareholders or any other person: person (iA) in respect of any merger, take-over bid, amalgamation, plan of arrangement, business combination or similar transaction Acquisition Proposal involving the Company or its Subsidiaries, other than the Offer; (iiB) which would reasonably be regarded as being directed towards may in any manner adversely affect, by delay or likely to prevent or delay otherwise, the take-up of and payment for the Subject Company Shares deposited under the Offer or the successful completion of the Offer, including without limitation limitation, any amendment to the articles memorandum or by-laws articles, constating documents or corporate structure of the Company or its corporate structure; Company, or (iiiC) which would reasonably be expected to result in a Company Material Adverse Effect. In connection therewith, the Seller hereby appoints Offeror as the Parent as its Seller’s attorney in fact (which appointment is unconditional, irrevocable (subject to Article 56), and is coupled with an interest) for and on his such Seller’s behalf to execute a proxy appointing a person designated by the Parent Offeror to attend and act on behalf of the Seller at any meeting of shareholders of the Company Shareholders and to execute one or more Shareholder consents or other Shareholder approval documents in respect of any of the matters referred to in this Section 2.2(c); provided that if, pursuant to this power of attorney, the Parent has executed and not revoked a proxy in respect of such a meeting, which proxy has been accepted by the Company, then in such circumstances the Seller shall not be responsible for voting under this Section 2.2(c2.2(d). The Parent Offeror shall advise the Seller upon executing any proxies or Shareholder consents or other Shareholder approval documents in respect of the Subject Company Shares held by the Seller.
2.3 Each Seller covenants to co-operate with the Parent and the Offeror in making all requisite regulatory filings.
2.4 Nothing in this Article 2 shall prevent a Seller who is a member of the board of directors of the Company or is a senior officer of the Company from engaging, in such Seller’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 Acquisition Proposal made in writing to the board of directors of the Company by such person (which Acquisition Proposal did not result from a breach of this Lock-Up Agreement or the Support Agreement) in circumstances where the Company is permitted by section 3.3(a) of the Support Agreement to engage in such discussions or negotiations. For greater certainty, each Seller acknowledges that this Section 2.4 shall not affect such Seller’s obligation to deposit or cause to be deposited (and, except as permitted by this Lock-Up Agreement, not withdraw or cause to be withdrawn) the Subject Shares under the Offer in accordance with the terms and conditions of this Lock-Up Agreement.
(a) Upon prior written notice to the Offeror prior to the 15th calendar day after the mailing of the Offer, a Seller may transfer any of its Subject Shares:
(i) as a bona fide gift or gifts, provided that prior to such transfer the donee or donees agrees to be bound by the terms and conditions of this Agreement and delivers an executed counterpart of this Agreement prior to such transfer as if it were an original party hereto;
(ii) to any trust for the direct or indirect benefit of the undersigned or immediate family of the undersigned, provided that prior to such transfer the trustees of the trust agree to be bound by the terms and conditions of this Agreement and delivers an executed counterpart of this Agreement prior to such transfer as if it were an original party hereto; or
(iii) to any affiliate, provided that prior to such transfer the affiliate agrees to be bound by the terms and conditions of this Agreement and deliver an executed counterpart of this Agreement prior to such transfer as if it were an original party hereto.
(b) No transfers pursuant to this Section 2.5 shall relieve Offeror or such Seller, as applicable, of its obligations hereunder.
(c) For purposes of this agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin and “affiliate” shall have the meaning attributed to it under the Business Corporations Act (British Columbia).
Appears in 1 contract
Samples: Lock Up Agreement (China Minmetals Non-Ferrous Metals Co.Ltd.)
Covenants of the Sellers. 2.1 Each Seller hereby agrees that he shall notagrees, from the date hereof until the earlier of: (i) the termination of this Lock-Up Agreement pursuant to Article 56; and (ii) the Expiry Effective Time, except in accordance with the terms of this Lock-Up Agreement, not to:
(a) except to the extent permitted by Sections 2.1(d) and 2.2(a), take any action, directly or indirectly, which may in any way adversely affect in any material respect the success of the Offer or the purchase of any Company Shares under the Offer;
(b) acquire direct or indirect beneficial ownership or holding control of or control or direction over any additional Company Shares or Options or obtain or enter into any right to do so, with the exception of any Company Shares acquired pursuant to the exercise of OptionsOptions as contemplated by Section 3.2 hereof and any Bonus Shares listed immediately below such Seller's Acceptance;
(b) 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 Options or Subject Shares or any right or interest in either, or agree to do any of the foregoing except pursuant to the Offer or pursuant to Section 2.5;
(c) grant or agree to grant any proxy or other right to the Subject Company Shares, or enter into any voting trust or pooling agreement or arrangement or enter into or subject any of such Subject Company Shares to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting thereof;
(d) in any manner, directly or indirectly, including through any officer, director, employee, representative (including for greater certainty any financial or other advisors) or agent or otherwise (as applicable), makeRepresentative, solicit, assist, initiate, or knowingly encourage or otherwise facilitate any inquiries, proposals proposals, offers or offers public announcements (or the submission or initiation of any of the foregoing) from any person regarding an any Acquisition Proposal, engage in any negotiations concerning, or provide any information to, or have any discussions with or negotiations regarding otherwise cooperate with, any person relating to an Acquisition Proposal, or otherwise co-operate in any way with, or assist or participate in, knowingly facilitate or knowingly encourage any effort or attempt by any other person to do make or seek to do any of the foregoing; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written implement an Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which (i) the Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support Agreement; and (ii) in respect of which the Board of Directors, after receiving advice of the Company’s outside legal counsel reflected in the minutes of the Board of Directors to such effect, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties under all applicable lawsProposal;
(e) solicit or arrange or provide assistance to any other person to arrange for the solicitation of, purchases of or offers to sell Company Shares or act in concert or jointly with any other person for the purpose of acquiring Company Shares or for the purpose of affecting the control of the Company;
(f) option, sell, assign, dispose of, pledge, encumber, grant a security interest deposit or cause to be deposited such Seller's Subject Shares under any Acquisition Proposal nor support any Acquisition Proposal in or otherwise convey any Options or Subject Company Shares or any right or interest therein, or enter into a stock lending arrangement with respect to any Subject Company Shares, or agree to do any of the foregoing except pursuant to the Offer and this Agreementmanner whatsoever;
(g) vote or cause to be voted any of the Seller’s Subject Company Shares in respect of any proposed action by the Company or its shareholders or affiliates or any other person in a manner which would reasonably be regarded as likely to prevent or delay the successful completion of the Offer;
(h) except as required by applicable lawsLaws, prior to the public announcement by the Parent Offeror of its intention to cause the Offeror to make the Offer, directly or indirectly, disclose to any person, firm or corporation person (other than the Company and the its financial and legal advisors of the Companyadvisors) the existence of this Lock-Up Agreement or the terms and conditions of this Lock-Up Agreement, or the possibility of the Parent or the Offeror making the Offer or any terms or conditions or other information concerning the Offer;
(h) 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 Support Agreement; orand
(i) not 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 2.1.
2.2 Each Seller hereby agrees that he shallagrees, from the date hereof until the earlier of: (i) the termination of this Lock-Up Agreement pursuant to Article 56; and (ii) the Expiry Effective Time, except in accordance with the terms of this Lock-Up Agreement, to:
(a) immediately cease, cause its Representatives to cease and cause to be terminated any existing solicitations, discussions or negotiations he is engaged in with any person parties (other than the Parent and Offeror or any Representative of the Offeror Offeror) with respect to any Acquisition Proposal or any potential Acquisition Proposal and request the return or destruction of all confidential information provided in connection therewith; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support AgreementProposal;
(b) as soon as reasonably practicable promptly notify Offeror, at first orally and then in writing, of all Acquisition Proposals currently under consideration or of which the Parent Seller is aware;
(c) promptly (and the Offeror in any event within 24 hours after it has received any proposal, inquiry, offer or request) notify Offeror, at first orally and then in writing of: (i) any proposal, inquiry, offer (or request, or any amendment theretoto any of the foregoing (each, a "Third Party Inquiry") or request that the Seller receives, receives or of which the Seller becomes aware, aware that relates to, constitutes or constitutes, or which the Seller reasonably believes could lead to, a bona fide to an Acquisition Proposal; or (ii) any request that the Seller receives for discussions or negotiations relating to an Acquisition Proposal or any request for non-public information relating to the Company or its Subsidiaries or any of their respective mineral properties by any person or entity that informs the Seller that it is considering makingcontractual or legal rights or for access to properties, books and records or has made, an Acquisition Proposala list of Shareholders. Such notice to the Parent and the Offeror shall be made, from time to time, orally and in writing and shall include a description of the terms and conditions of, and the identity of the person making, any such proposal, inquiry, offer (including any amendment thereto) or request Third Party Inquiry and shall include copies of such Third Party Inquiry and any other written correspondence related to such proposal, inquiry, offer or request or any amendment to any Third Party Inquiry. The Seller shall also provide such other details of the foregoingThird Party Inquiry as Offeror may reasonably request. The Seller shall keep Offeror promptly and fully informed of the status, including any change to the material terms, of any Third Party Inquiry, and will respond promptly to all inquiries by Offeror with respect thereto; and
(cd) exercise the voting rights attaching to the Subject Company Shares and otherwise use the Seller’s 's commercially reasonable efforts in the Seller’s 's capacity as a shareholder of the Company Shareholder to oppose any proposed action by the CompanyCompany or its Subsidiaries, its shareholders, its Subsidiaries the Shareholders or any other person: person (iA) in respect of any merger, take-over bid, amalgamation, plan of arrangement, business combination or similar transaction Acquisition Proposal involving the Company or its Subsidiaries, other than the Offer; (iiB) which would reasonably be regarded as being directed towards may in any manner adversely affect, by delay or likely to prevent or delay otherwise, the take-up of and payment for the Subject Company Shares deposited under the Offer or the successful completion of the Offer, including without limitation limitation, any amendment to the articles memorandum or by-laws articles, constating documents or corporate structure of the Company or its corporate structure; Company, or (iiiC) which would reasonably be expected to result in a Company Material Adverse Effect. In connection therewith, the Seller hereby appoints Offeror as the Parent as its Seller's attorney in fact (which appointment is unconditional, irrevocable (subject to Article 56), and is coupled with an interest) for and on his such Seller's behalf to execute a proxy appointing a person designated by the Parent Offeror to attend and act on behalf of the Seller at any meeting of shareholders of the Company Shareholders and to execute one or more Shareholder consents or other Shareholder approval documents in respect of any of the matters referred to in this Section 2.2(c); provided that if, pursuant to this power of attorney, the Parent has executed and not revoked a proxy in respect of such a meeting, which proxy has been accepted by the Company, then in such circumstances the Seller shall not be responsible for voting under this Section 2.2(c2.2(d). The Parent Offeror shall advise the Seller upon executing any proxies or Shareholder consents or other Shareholder approval documents in respect of the Subject Company Shares held by the Seller.
2.3 Each Seller covenants to co-operate with the Parent and the Offeror in making all requisite regulatory filings.
2.4 Nothing in this Article 2 shall prevent a Seller who is a member of the board of directors of the Company or is a senior officer of the Company from engaging, in such Seller'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 Acquisition Proposal made in writing to the board of directors of the Company by such person (which Acquisition Proposal did not result from a breach of this Lock-Up Agreement or the Support Agreement) in circumstances where the Company is permitted by section 3.3(a) of the Support Agreement to engage in such discussions or negotiations. For greater certainty, each Seller acknowledges that this Section 2.4 shall not affect such Seller's obligation to deposit or cause to be deposited (and, except as permitted by this Lock-Up Agreement, not withdraw or cause to be withdrawn) the Subject Shares under the Offer in accordance with the terms and conditions of this Lock-Up Agreement.
(a) Upon prior written notice to the Offeror prior to the 20th calendar day after the mailing of the Offer, a Seller may transfer any of its Subject Shares:
(i) as a bona fide gift or gifts, provided that prior to such transfer the donee or donees agrees to be bound by the terms and conditions of this Agreement and delivers an executed counterpart of this Agreement prior to such transfer as if it were an original party hereto;
(ii) to any trust for the direct or indirect benefit of the undersigned or immediate family of the undersigned, provided that prior to such transfer the trustees of the trust agree to be bound by the terms and conditions of this Agreement and delivers an executed counterpart of this Agreement prior to such transfer as if it were an original party hereto; or
(iii) to any affiliate, provided that prior to such transfer the affiliate agrees to be bound by the terms and conditions of this Agreement and deliver an executed counterpart of this Agreement prior to such transfer as if it were an original party hereto.
(b) No transfers pursuant to this Section 2.5 shall relieve Offeror or such Seller, as applicable, of its obligations hereunder.
(c) For purposes of this agreement, "immediate family" shall mean any relationship by blood, marriage or adoption, not more remote than first cousin and "affiliate" shall have the meaning attributed to it under the Business Corporations Act (British Columbia).
Appears in 1 contract
Covenants of the Sellers. 2.1 Each Seller hereby agrees that he shall not, from 5.1 Management of the Group Companies between the date hereof until and the earlier of: (i) Closing Date Between the termination of this Agreement pursuant to Article 5; date hereof and (ii) the Expiry TimeClosing Date, except in accordance with as otherwise provided for herein or as may be expressly agreed to by the terms of this AgreementPurchaser, the Sellers shall cause:
(a) except each of the Group Companies to carry out its activities solely within the normal and ordinary course of business, including not permitting the sale, transfer or disposition of any of the assets of the Group Companies, not entering into any material contract or commitment, engaging in any transaction, extending credit or incurring any obligation with respect to the extent permitted by Sections 2.1(d) Group Companies, in each case, other than in the usual and 2.2(a)ordinary course of business and in a manner consistent with past practice, take and not making or instituting any actionusual or novel methods of purchase, directly sale, management, operation, or indirectly, which may other business practice in any way adversely affect in any material respect the success management of the Offer Group Companies, not modifying the compensation or benefits payable or to become payable to employees or agents of the purchase of any Company Shares under the OfferGroup Companies;
(b) acquire direct the Company not to decide upon, or indirect beneficial ownership make, any distribution of profit or holding of or control or direction over any additional Company Shares or obtain or enter into any right to do so, with the exception of any Company Shares acquired pursuant to the exercise of Optionsreserves;
(c) grant each of the Group Companies not to be a party to any merger, contribution or agree spin off; not to grant make any proxy or other right change to the Subject Company Sharesits capital, or enter into issue securities of any voting trust nature whatsoever or pooling agreement or arrangement or enter into or subject any of such Subject Company Shares to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting thereofwarrants;
(d) in the Group Companies not to make any manner, directly modifications to the respective articles of incorporation or indirectly, through any officer, director, employee, representative (including for greater certainty any financial or other advisors) or agent or otherwise (as applicable), make, solicit, assist, initiate, encourage or otherwise facilitate any inquiries, proposals or offers from any person regarding an Acquisition Proposal, engage in any discussions or negotiations regarding any Acquisition Proposal, or otherwise coby-operate in any way with, or assist or participate in, knowingly facilitate or encourage any effort or attempt by any other person to do or seek to do laws of any of the foregoing; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which (i) the Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support Agreement; and (ii) in respect of which the Board of Directors, after receiving advice of the Company’s outside legal counsel reflected in the minutes of the Board of Directors to such effect, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties under all applicable lawsGroup Companies;
(e) solicit or arrange or provide assistance the Group Companies not to incur any new loan granted by parties other person to arrange for than their shareholders and their respective Affiliates (except as may be directed by the solicitation of, purchases of or offers to sell Company Shares or act Purchaser in concert or jointly with any other person for the purpose of acquiring Company Shares or the purpose of affecting the control view of the CompanyClosing);
(f) option, sell, assign, dispose of, pledge, encumber, grant a security interest in or otherwise convey any Options or Subject Company Shares or any right or interest therein, or enter into a stock lending arrangement with respect the Group Companies not to any Subject Company Shares, or agree to do take any of the foregoing except pursuant to the Offer and this Agreementactions set forth above;
(g) vote or cause to be voted any each of the Seller’s Subject Company Shares Group Companies to refrain from making any change in respect of any proposed action the accounting practices or procedures applied by the Company or its shareholders or affiliates or any other person in a manner which would reasonably be regarded as likely to prevent or delay the successful completion of the OfferGroup Companies;
(h) except as required by applicable lawseach of the Group Companies not to enter into, prior to the public announcement by the Parent of its intention to cause the Offeror to make the Offer, directly issue or indirectly, disclose grant to any personthird party any agreements, firm arrangements, warrants, call options, convertible rights or corporation other rights (other than the Company and the financial and legal advisors vested or contingent) to acquire any capital stock of the Company) the existence of the terms and conditions of this Agreement, or the possibility of the Parent or the Offeror making the Offer or any terms or conditions or other information concerning the Offer; orGroup Companies;
(i) not take any action the Group Companies to encourage or assist any other person to do any inform the Purchaser of the prohibited acts occurrence of any event referred to in foregoing provisions of this Section 2.14.23 above.
2.2 Each Seller hereby agrees that he shall, from the date hereof until the earlier of: (i) the termination of this Agreement pursuant to Article 5; and (ii) the Expiry Time, except in accordance with the terms of this Agreement:
(a) immediately cease any existing solicitations, discussions or negotiations he is engaged in with any person other than the Parent and the Offeror with respect to any potential Acquisition Proposal and request the return or destruction of all confidential information provided in connection therewith; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support Agreement;
(b) as soon as reasonably practicable notify the Parent and the Offeror of: (i) any proposal, inquiry, offer (or any amendment thereto) or request that the Seller receives, or of which the Seller becomes aware, that relates to, or constitutes, or which the Seller reasonably believes could lead to, a bona fide Acquisition Proposal; or (ii) any request that the Seller receives for discussions or negotiations relating to an Acquisition Proposal or any request for non-public information relating to the Company or its Subsidiaries or any of their respective mineral properties by any person or entity that informs the Seller that it is considering making, or has made, an Acquisition Proposal. Such notice to the Parent and the Offeror shall be made, from time to time, orally and in writing and shall include a description of the terms and conditions of any such proposal, inquiry, offer (including any amendment thereto) or request and shall include copies of any such proposal, inquiry, offer or request or any amendment to any of the foregoing; and
(c) exercise the voting rights attaching to the Subject Company Shares and otherwise use the Seller’s commercially reasonable efforts in the Seller’s capacity as a shareholder of the Company to oppose any proposed action by the Company, its shareholders, its Subsidiaries or any other person: (i) in respect of any merger, take-over bid, amalgamation, plan of arrangement, business combination or similar transaction involving the Company or its Subsidiaries, other than the Offer; (ii) which would reasonably be regarded as being directed towards or likely to prevent or delay the take-up of and payment for the Subject Company Shares deposited under the Offer or the successful completion of the Offer, including without limitation any amendment to the articles or by-laws of the Company or its corporate structure; or (iii) which would reasonably be expected to result in a Company Material Adverse Effect. In connection therewith, the Seller hereby appoints the Parent as its attorney in fact (which appointment is unconditional, irrevocable (subject to Article 5), and is coupled with an interest) for and on his behalf to execute a proxy appointing a person designated by the Parent to attend and act on behalf of the Seller at any meeting of shareholders of the Company in respect of any of the matters referred to in this Section 2.2(c); provided that if, pursuant to this power of attorney, the Parent has executed and not revoked a proxy in respect of such a meeting, which proxy has been accepted by the Company, then in such circumstances the Seller shall not be responsible for voting under this Section 2.2(c). The Parent shall advise the Seller upon executing any proxies in respect of the Subject Company Shares held by the Seller.
2.3 Each Seller covenants to co-operate with the Parent and the Offeror in making all requisite regulatory filings.
Appears in 1 contract
Covenants of the Sellers. 2.1 (a) Each Seller hereby agrees that he shall notthat, from during the period commencing on the date hereof and continuing until the earlier of: of (i) the termination of this Agreement pursuant to Article 5; Termination Date and (ii) the Expiry Time, except in accordance with the terms of this Agreement:
(ai) except to the extent permitted by Sections 2.1(d) and 2.2(a)hereunder, it will not take any actionact, directly or indirectly, which may in any way adversely affect in any material respect the success of the Offer or the purchase of any Company Common Shares under the Offer, but, subject to section 9 or unless such a vote would be contrary to other provisions of this agreement, otherwise may continue to vote its Subject Shares as it sees fit;
(bii) acquire direct or indirect beneficial ownership or holding of or control or direction over it will immediately cease and cause to be terminated any additional Company Shares or obtain or enter into existing discussions with any right to do so, with the exception of any Company Shares acquired pursuant to the exercise of Options;
parties (cother than BCE) grant or agree to grant any proxy or other right to the Subject Company Shares, or enter into any voting trust or pooling agreement or arrangement or enter into or subject any of such Subject Company Shares to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting thereof;any Acquisition Proposal (as defined below); and
(diii) in any manner, it will not directly or indirectly, through any officer, director, employee, representative (including for greater certainty any financial or other advisors) or agent or otherwise (as applicable), make, solicit, assist, initiate, initiate or encourage inquiries from or otherwise facilitate any inquiries, submission of proposals or offers from any person regarding other person, corporation, partnership or other business organization whatsoever (including any of its officers or employees) relating to any liquidation, dissolution, recapitalization, merger, amalgamation or acquisition or purchase of all or a material portion of the assets of, or any equity interest (including Common Shares) in, the Company or any of its subsidiaries or other similar transaction or business combination involving the Company or any of its subsidiaries (any such proposal or offer, an "Acquisition Proposal"), engage or participate in any discussions or negotiations regarding regarding, or furnish to any Acquisition Proposalother person any information with respect to, or otherwise co-operate cooperate in any way with, or assist or participate in, knowingly facilitate or encourage encourage, any effort or attempt by any other person to do or seek to do any of the foregoing; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company (the "Board of Directors") from engaging, responding in such capacity, in discussions or negotiations with his capacity as a person in response director to a any bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement third party to the Company or the Support Agreement and which (i) the Board of Directors determines after the date hereof, providing information to such third party or taking any action referred to in (i) above in his capacity as a director of the Company if, acting in good faith constitutes a Superior Acquisition Proposal on and upon the basis provided for in Section 6.2(a) of the Support Agreement; and (ii) in respect of which the Board of Directors, after receiving advice of the Company’s outside legal counsel reflected in the minutes and financial advisors of the Board of Directors to such effectwhere appropriate, determines in good faith that the failure to take such action do so would be inconsistent with its such Seller's fiduciary duties under all applicable laws;
(e) solicit or arrange or provide assistance to any other person to arrange for the solicitation of, purchases of or offers to sell Company Shares or act in concert or jointly with any other person for the purpose of acquiring Company Shares or the purpose of affecting the control as a member of the Company;
Board of Directors. For greater certainty, each such Seller acknowledges that the proviso to this subsection 4(a) shall not affect such Seller's obligation to tender (fand not withdraw) option, sell, assign, dispose of, pledge, encumber, grant a security interest in or otherwise convey any Options or the Subject Company Shares or any right or interest therein, or enter into a stock lending arrangement with respect to any Subject Company Shares, or agree to do any of the foregoing except Offer pursuant to the Offer terms and conditions of this Agreement;
agreement. If any Seller receives any Acquisition Proposal or any inquiry concerning an Acquisition Proposal (g) vote including an offer or cause invitation to enter into discussions), such Seller will promptly notify the Offeror in writing and provide to the Offeror all relevant details relating thereto, including, without limitation, the price proposed to be voted paid in connection with such Acquisition Proposal and the form of consideration to be paid; provided, however, that no Seller shall be required to disclose to the Offeror any of the Seller’s Subject Company Shares in respect of such Acquisition Proposal or any proposed action by matter relating thereto if such Acquisition Proposal was made to the Company or its shareholders Board of Directors and such Seller was informed of such Acquisition Proposal in his or affiliates her capacity as a member of the Board of Directors and, acting in good faith and upon the advice of the legal and financial advisors of the Board of Directors where appropriate, disclosure thereof by such Seller to the Offeror would be inconsistent with such Seller's fiduciary duties as a member of the Board of Directors.
(b) Each Seller agrees that during the period commencing on the date hereof and continuing until the earlier of (i) the Termination Date and (ii) the Expiry Time :
(i) it will use its reasonable best efforts in its capacity as a shareholder, and, if applicable, as a director subject to his fiduciary duties, to ensure that the business and affairs of the Company and its subsidiaries are operated in the ordinary course in substantially the same manner as conducted prior to the date hereof, and
(ii) it shall not sell, transfer or encumber in any way any Subject Shares or Options owned by it or relinquish or modify its right to vote any Subject Shares or any other person in a manner which would reasonably be regarded as likely to prevent or delay the successful completion securities of the Offer;Company.
(hc) Each Seller agrees that, except as required by applicable lawslaw, such Seller will not prior to the public announcement by the Parent Offeror of its intention to cause the Offeror to make terms of the Offer, directly or indirectly, disclose to any person, firm or corporation (other than the Company and the financial and legal advisors of the Company) the existence of the terms and conditions of this Agreementagreement, or the possibility of the Parent or the Offeror making the Offer being made or any terms or conditions or other information concerning any possible offer to be made for the Offer; orCommon Shares.
(id) not take any action to encourage or assist any other person to do any of the prohibited acts referred to in foregoing provisions of this Section 2.1.
2.2 Each Seller hereby covenants and agrees that he shall, from the date hereof until the earlier of: (i) the termination of this Agreement pursuant to Article 5; and (ii) the Expiry Time, except in accordance with the terms of this Agreement:
(a) immediately cease any existing solicitations, discussions or negotiations he is engaged in with any person other than the Parent and the Offeror with respect use their reasonable best efforts to any potential Acquisition Proposal and request the return or destruction of all confidential information provided in connection therewith; provided, however, that the foregoing shall not prevent a Seller who is a member cause Xxxx X. Xxxxx to be appointed as Chairman of the Board of Directors or is a senior officer and to have Xxxxx Xxxxx and Xxxxxxxxx Xxxx appointed as co-Chief Executive Officers of the Company upon Xxxxxxx Xxxxxx' resignation.
(e) Xxxxx X. Xxxxxx agrees that from engagingand after the date hereof to and including February 15, 2002, he shall be available to participate in such capacitya minimum of 20 presentations per year regarding the Company's business with management of Teleglobe or its subsidiaries, to potential and existing external independent representatives, which services shall be provided in discussions or negotiations accordance with a person the consulting agreement (the "Xxxxxx Consulting Agreement") dated September 14, 1999 between Xxxxx X. Xxxxxx and the Company and certain of its subsidiaries. The Offeror hereby acknowledges and agrees that it is the intention of the parties that the Xxxxxx Consulting Agreement shall continue in response full force and effect after the date hereof.
(f) Upon the purchase by the Offeror of the Subject Shares, the Xxxxxx Group acknowledges that BCE shall be entitled to a bona fide written Acquisition Proposal made by a such person which did not result from a breach designate all members of this Agreement or the Support Agreement and which Board of Directors determines currently designated as Excel Directors (as defined in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) articles of the Support Agreement;
(b) as soon as reasonably practicable notify the Parent Company), and any committees thereof and the Offeror of: Xxxxxx Group shall, upon request by BCE, but subject to applicable law, promptly use their best efforts to (i) expand the Board of Directors, (ii) secure the resignations of such number of directors, (iii) cause the Excel Directors to nominate as directors of the Company and/or (iv) take all other action (including voting as directors of the Company), in each case as is necessary to enable BCE's designees to be elected or appointed to the Board of Directors and to cause BCE's designees to be so elected or appointed.
(i) Each Seller agrees to execute and jointly file with the Offeror, an election pursuant to section 85 of the Income Tax Act (Canada) (the "Canadian Income Tax Act") in which election such Seller will elect the cost amount of the Subject Shares which shall be such Seller's proceeds of disposition and the Offeror's cost of the Common Shares exchanged for BCE Shares, provided such amount is within the limits prescribed by section 85 of the Canadian Income Tax Act. Such Seller shall provide the Offeror with the completed election form no later than January 15, 2001. The Offeror will execute any proposalcompleted election form received and file the form with the appropriate tax authority.
(ii) BCE agrees to indemnify and save harmless the Xxxxxx Group from any losses, inquirydamages, offer liabilities, costs, expenses, taxes, interest and penalties (including, without limitation, reasonable legal and other professional fees and disbursements) ("Losses") resulting from the Xxxxxx Group's agreement to file an election under section 85 of the Tax Act pursuant to this subsection 4(g).
(iii) In the event that any member of the Xxxxxx Group (an "Indemnified Party") shall become aware of any claim, proceeding or other matter (a "Claim in respect of which BCE agreed to indemnify the Indemnified Party pursuant to this agreement, the Indemnified Party shall promptly give written notice thereof to BCE. Such notice shall specify with reasonable particularity (to the extent that the information is available) the factual basis for the Claim and the amount of the Claim, if known. If, through the fault of the Indemnified Party, BCE does not receive notice of any Claim in time to contest effectively the determination of any liability susceptible of being contested, BCE shall be entitled to set off against the amount claimed by the Indemnified Party the amount of any Losses incurred by BCE resulting directly from the Indemnified Party's failure to give such notice on a timely basis.
(iv) Following receipt of notice from the Indemnified Party of the Claim, BCE shall have 60 days to make such investigation of the Claim as is considered necessary or desirable. For the purpose of such investigation, the Indemnified Party shall make available to BCE the information relied upon by the Indemnified Party to substantiate the Claim, together with all such other information as BCE may reasonably request. If both parties agree at or prior to the expiration of such 60-day period (or any amendment theretomutually agreed upon extension thereof) or request that the Seller receives, or of which the Seller becomes aware, that relates to, or constitutes, or which the Seller reasonably believes could lead to, a bona fide Acquisition Proposal; or (ii) any request that the Seller receives for discussions or negotiations relating to an Acquisition Proposal or any request for non-public information relating to the Company or its Subsidiaries or any validity and amount of their respective mineral properties by any person or entity that informs the Seller that it is considering makingsuch Claim, or has made, an Acquisition Proposal. Such notice BCE shall immediately pay to the Parent and Indemnified Party the Offeror shall be made, from time to time, orally and in writing and shall include a description full agreed upon amount of the terms and conditions of any such proposal, inquiry, offer (including any amendment thereto) or request and shall include copies of any such proposal, inquiry, offer or request or any amendment to any of the foregoing; andClaim.
(cv) exercise the voting rights attaching BCE shall pay to the Subject Company Shares and otherwise use Indemnified Party all amounts for which BCE is liable pursuant to this subsection 4(g) promptly after the Seller’s commercially reasonable efforts in Indemnified Party incurs the Seller’s capacity as a shareholder of the Company to oppose any proposed action by the Company, its shareholders, its Subsidiaries or any other person: (i) Loss in respect of any merger, take-over bid, amalgamation, plan of arrangement, business combination or similar transaction involving the Company or its Subsidiaries, other than the Offer; (ii) which would reasonably be regarded as being directed towards or likely to prevent or delay the take-up of and payment for the Subject Company Shares deposited under the Offer or the successful completion of the Offer, including without limitation any amendment to the articles or by-laws of the Company or its corporate structure; or (iii) which would reasonably be expected to result in a Company Material Adverse Effect. In connection therewith, the Seller hereby appoints the Parent as its attorney in fact (which appointment is unconditional, irrevocable (subject to Article 5), and is coupled with an interest) for and on his behalf to execute a proxy appointing a person designated by the Parent to attend and act on behalf of the Seller at any meeting of shareholders of the Company in respect of any of the matters referred to in this Section 2.2(c); provided that if, pursuant to this power of attorney, the Parent has executed and not revoked a proxy in respect of such a meeting, which proxy has been accepted by the Company, then in such circumstances the Seller shall not be responsible for voting under this Section 2.2(c). The Parent shall advise the Seller upon executing any proxies in respect of the Subject Company Shares held by the Sellerliability arises.
2.3 Each Seller covenants to co-operate with the Parent and the Offeror in making all requisite regulatory filings.
Appears in 1 contract
Covenants of the Sellers. 2.1 Each Seller hereby agrees severally (but not jointly and severally) that he shall not, from during the period commencing on the date hereof and continuing until the earlier of: (i) the termination of this Agreement pursuant to Article 5; and the Offer (iias extended, where applicable) or the Expiry Time, except termination hereof in accordance with Section 7, as the terms of this Agreementcase may be:
(ai) except to the extent permitted by Sections 2.1(d) and 2.2(a)hereunder, each Seller will not take any actionact, directly or indirectly, which may in any way adversely affect in any material respect the success of the Offer or the purchase of any Company Shares under the Offer;
(bii) acquire direct or indirect beneficial ownership or holding of or control or direction over any additional Company Shares or obtain or enter into any right to do so, with each Seller will exercise the exception of any Company Shares acquired pursuant voting rights attaching to the exercise Subject Shares and otherwise use its best efforts as a Shareholder of Optionsthe Company to oppose any proposed action by the Company, its Shareholders or any of its Subsidiaries or any other Person in respect of (A) an Acquisition Proposal; or (B) any action or transaction that would impede, interfere with, delay, postpone or attempt to discourage the Offer;
(ciii) grant each Seller will immediately cease and cause to be terminated any existing discussions, negotiations, proposals or agree to grant offers with any proxy or Person (other right to than the Subject Company Shares, or enter into any voting trust or pooling agreement or arrangement or enter into or subject any of such Subject Company Shares to any other agreement, arrangement, understanding or commitment, formal or informal, Offeror and Parent) with respect to any proposal that constitutes, or relating may reasonably be expected to the voting thereof;lead to, an Acquisition Proposal; and
(div) in any manner, directly or indirectly, through any officer, director, employee, representative each Seller will not: (including for greater certainty any financial or other advisorsA) or agent or otherwise (as applicable), make, solicit, assist, initiate, encourage or otherwise facilitate (including by way of furnishing information or entering into any inquiriesform of agreement, arrangement or understanding) inquiries from or submissions of proposals or offers from any person regarding an other Person (including any of its officers or employees) relating to any Acquisition Proposal, engage ; (B) participate in any discussions or negotiations regarding regarding, or furnish to any Acquisition Proposal, Person any information with respect to or otherwise co-operate in any way with, or respond to, assist or participate in, knowingly facilitate or encourage any effort or attempt by any other person Person to do or seek to do any of the foregoing; or (C) enter into any agreement, arrangement or understanding related to any Acquisition Proposal, provided, however, that the foregoing shall not prevent a Seller any of the Sellers who is a member of the Board of Directors or is a senior officer director of the Company from engaging, doing any act or thing that he properly is obliged to do in such capacity, in discussions or negotiations with his capacity as a person in response to a bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which (i) the Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) director of the Support Agreement; and Company including, without limitation, responding in his capacity as a director to any Superior Proposal.
(iib) in respect of which the Board of Directors, after receiving advice Each of the Company’s outside legal counsel reflected in the minutes of the Board of Directors Sellers agrees to such effect, determines in good faith that the failure immediately provide notice to take such action would be inconsistent with its fiduciary duties under all applicable laws;
(e) solicit or arrange or provide assistance to any other person to arrange for the solicitation of, purchases of or offers to sell Company Shares or act in concert or jointly with any other person for the purpose of acquiring Company Shares or the purpose of affecting the control of the Company;
(f) option, sell, assign, dispose of, pledge, encumber, grant a security interest in or otherwise convey any Options or Subject Company Shares or any right or interest therein, or enter into a stock lending arrangement with respect to any Subject Company Shares, or agree to do any of the foregoing except pursuant to the Offer and this Agreement;
(g) vote or cause to be voted any of the Seller’s Subject Company Shares in respect of any proposed action by the Company or its shareholders or affiliates or any other person in a manner which would reasonably be regarded as likely to prevent or delay the successful completion of the Offer;
(h) except as required by applicable laws, prior to the public announcement by the Parent of its intention to cause the Offeror to make the Offer, directly or indirectly, disclose to any person, firm or corporation (other than the Company and the financial and legal advisors of the Company) the existence of the terms and conditions of this Agreement, or the possibility of the Parent or the Offeror making the Offer or any terms or conditions or other information concerning the Offer; or
(i) not take any action to encourage or assist any other person to do any of the prohibited acts referred to in foregoing provisions of this Section 2.1.
2.2 Each Seller hereby agrees that he shall, from the date hereof until the earlier of: (i) the termination of this Agreement pursuant to Article 5; and (ii) the Expiry Time, except in accordance with the terms of this Agreement:
(a) immediately cease any existing solicitations, discussions or negotiations he is engaged in with any person other than the Parent and the Offeror with respect to of any potential Acquisition Proposal and request the return or destruction of all confidential information provided in connection therewith; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a future bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support Agreement;
(b) as soon as reasonably practicable notify the Parent and the Offeror of: (i) any proposal, inquiry, offer (or any amendment thereto) or request that the Seller receives, or of which the Seller becomes aware, that relates to, or constitutes, or which the Seller reasonably believes could lead to, a bona fide Acquisition Proposal; or (ii) any request that the Seller receives for discussions or negotiations relating to an Acquisition Proposal or any request for non-public information relating to the Company or its any of the Subsidiaries in connection with a bona fide Acquisition Proposal or for access to the properties, books or records of the Company or any of their respective mineral properties Subsidiary by any person or entity Person that informs the Seller that it is considering making, or has made, an Acquisition Proposal. Such notice to the Parent and the Offeror shall be made, made from time to timetime upon any Seller being aware of such request or proposal, first immediately orally and promptly in writing and shall include a description indicate the identity of the terms and conditions of any Person making such proposal, inquiryinquiry or contact, offer (including any amendment thereto) or request all material terms thereof and shall include copies such other details of any such the proposal, inquiry, offer inquiry or request contact known to the Seller or any amendment to any of the foregoing; andas Parent or Offeror may reasonably request.
(c) exercise Each Seller agrees to use its reasonable best efforts to do, or cause to be done, all things necessary, proper or advisable under applicable Laws, to consummate the voting rights attaching transactions contemplated by this Agreement and the Offer as it relates to the Subject Company Shares and otherwise use the Seller’s commercially , including using its reasonable best efforts in the Seller’s capacity as a shareholder of the Company to oppose any proposed action by the Company, its shareholders, its Subsidiaries or any other personto: (i) in respect of any merger, take-over bid, amalgamation, plan of arrangement, business combination or similar transaction involving the Company or its Subsidiaries, other than support the Offer; (ii) which would reasonably obtain or assist or facilitate the Offeror in obtaining all necessary consents, approvals and authorizations as are required to be regarded as being directed towards obtained by or likely in respect of the Seller under applicable Laws relating to prevent or delay the take-up of and payment for the Subject Company Shares deposited under the Offer this Agreement or the successful completion of the Offer, including without limitation any amendment to the articles or by-laws of the Company or its corporate structure; or (iii) which would reasonably be expected lift or rescind any injunction or restraining order or other order adversely affecting such Seller's ability to result in consummate the transactions contemplated hereby or by the Offer; and (iv) fulfill all conditions and satisfy all provisions of this Agreement and the Offer applicable to such Seller.
(d) Each of the Sellers agrees not to, except as contemplated by this Agreement, sell, transfer, pledge, encumber, grant a Company Material Adverse Effect. In connection therewithsecurity interest in, hypothecate or otherwise convey, directly or indirectly, any Subject Shares or Rights held by the Seller hereby appoints the Parent as its attorney in fact (which appointment is unconditionalto any Person, irrevocable (subject or agree to Article 5), and is coupled with an interest) for and on his behalf to execute a proxy appointing a person designated by the Parent to attend and act on behalf any of the Seller at any meeting of shareholders foregoing.
(e) Each of the Company Sellers agrees not to grant any proxy or other right to vote in respect of any Subject Shares, or enter into any voting trust or other similar agreements with respect to the right to vote the Subject Shares.
(f) Each Seller who is a director hereby agrees to resign as a director of the matters referred to in this Section 2.2(c); provided that if, pursuant to this power of attorney, the Parent has executed and not revoked a proxy in respect of such a meeting, which proxy has been accepted by the Company, then in such circumstances immediately following the Seller shall not be responsible for voting under this Section 2.2(c). The Parent shall advise acquisition by the Seller upon executing any proxies in respect Offeror of more than 50% of the Subject outstanding Shares pursuant to the Offer in the manner contemplated by Section 1.4 of the Support Agreement, upon confirmation that the Company Shares held by is maintaining insurance coverage for services rendered as director or officer in accordance with Section 5.8 of the SellerSupport Agreement.
2.3 Each Seller covenants to co-operate with the Parent and the Offeror in making all requisite regulatory filings.
Appears in 1 contract
Samples: Acquisition Agreement (Activant Solutions Inc /De/)
Covenants of the Sellers. 2.1 Each Seller hereby agrees that he shall notagrees, from the date hereof until the earlier of: (i) the termination of this Lock-Up Agreement pursuant to Article 56; and (ii) the Expiry Effective Time, except in accordance with the terms of this Lock-Up Agreement, not to:
(a) except to the extent permitted by Sections 2.1(d) and 2.2(a), take any action, directly or indirectly, which may in any way adversely affect in any material respect the success of the Offer or the purchase of any Company Shares under the Offer;
(b) acquire direct or indirect beneficial ownership or holding control of or control or direction over any additional Company Shares or Options or obtain or enter into any right to do so, with the exception of any Company Shares acquired pursuant to the exercise of OptionsOptions as contemplated by Section 3.2 hereof and any Bonus Shares listed immediately below such Seller's Acceptance;
(b) 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 Options or Subject Shares or any right or interest in either, or agree to do any of the foregoing except pursuant to the Offer or pursuant to Section 2.5;
(c) grant or agree to grant any proxy or other right to the Subject Company Shares, or enter into any voting trust or pooling agreement or arrangement or enter into or subject any of such Subject Company Shares to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting thereof;
(d) in any manner, directly or indirectly, including through any officer, director, employee, representative (including for greater certainty any financial or other advisors) or agent or otherwise (as applicable), makeRepresentative, solicit, assist, initiate, or knowingly encourage or otherwise facilitate any inquiries, proposals proposals, offers or offers public announcements (or the submission or initiation of any of the foregoing) from any person regarding an any Acquisition Proposal, engage in any negotiations concerning, or provide any information to, or have any discussions with or negotiations regarding otherwise cooperate with, any person relating to an Acquisition Proposal, or otherwise co-operate in any way with, or assist or participate in, knowingly facilitate or knowingly encourage any effort or attempt by any other person to do make or seek to do any of the foregoing; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written implement an Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which (i) the Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support Agreement; and (ii) in respect of which the Board of Directors, after receiving advice of the Company’s outside legal counsel reflected in the minutes of the Board of Directors to such effect, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties under all applicable lawsProposal;
(e) solicit or arrange or provide assistance to any other person to arrange for the solicitation of, purchases of or offers to sell Company Shares or act in concert or jointly with any other person for the purpose of acquiring Company Shares or for the purpose of affecting the control of the Company;
(f) option, sell, assign, dispose of, pledge, encumber, grant a security interest deposit or cause to be deposited such Seller's Subject Shares under any Acquisition Proposal nor support any Acquisition Proposal in or otherwise convey any Options or Subject Company Shares or any right or interest therein, or enter into a stock lending arrangement with respect to any Subject Company Shares, or agree to do any of the foregoing except pursuant to the Offer and this Agreementmanner whatsoever;
(g) vote or cause to be voted any of the Seller’s Subject Company Shares in respect of any proposed action by the Company or its shareholders or affiliates or any other person in a manner which would reasonably be regarded as likely to prevent or delay the successful completion of the Offer;
(h) except as required by applicable lawsLaws, prior to the public announcement by the Parent Offeror of its intention to cause the Offeror to make the Offer, directly or indirectly, disclose to any person, firm or corporation person (other than the Company and the its financial and legal advisors of the Companyadvisors) the existence of this Lock-Up Agreement or the terms and conditions of this Lock-Up Agreement, or the possibility of the Parent or the Offeror making the Offer or any terms or conditions or other information concerning the Offer;
(h) 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 Support Agreement; orand
(i) not 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 2.1.
2.2 Each Seller hereby agrees that he shallagrees, from the date hereof until the earlier of: (i) the termination of this Lock-Up Agreement pursuant to Article 56; and (ii) the Expiry Effective Time, except in accordance with the terms of this Lock-Up Agreement, to:
(a) immediately cease, cause its Representatives to cease and cause to be terminated any existing solicitations, discussions or negotiations he is engaged in with any person parties (other than the Parent and Offeror or any Representative of the Offeror Offeror) with respect to any Acquisition Proposal or any potential Acquisition Proposal and request the return or destruction of all confidential information provided in connection therewith; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support AgreementProposal;
(b) as soon as reasonably practicable promptly notify Offeror, at first orally and then in writing, of all Acquisition Proposals currently under consideration or of which the Parent Seller is aware;
(c) promptly (and the Offeror in any event within 24 hours after it has received any proposal, inquiry, offer or request) notify Offeror, at first orally and then in writing of: (i) any proposal, inquiry, offer (or request, or any amendment theretoto any of the foregoing (each, a "Third Party Inquiry") or request that the Seller receives, receives or of which the Seller becomes aware, aware that relates to, constitutes or constitutes, or which the Seller reasonably believes could lead to, a bona fide to an Acquisition Proposal; or (ii) any request that the Seller receives for discussions or negotiations relating to an Acquisition Proposal or any request for non-public information relating to the Company or its Subsidiaries or any of their respective mineral properties by any person or entity that informs the Seller that it is considering makingcontractual or legal rights or for access to properties, books and records or has made, an Acquisition Proposala list of Shareholders. Such notice to the Parent and the Offeror shall be made, from time to time, orally and in writing and shall include a description of the terms and conditions of, and the identity of the person making, any such proposal, inquiry, offer (including any amendment thereto) or request Third Party Inquiry and shall include copies of such Third Party Inquiry and any other written correspondence related to such proposal, inquiry, offer or request or any amendment to any Third Party Inquiry. The Seller shall also provide such other details of the foregoingThird Party Inquiry as Offeror may reasonably request. The Seller shall keep Offeror promptly and fully informed of the status, including any change to the material terms, of any Third Party Inquiry, and will respond promptly to all inquiries by Offeror with respect thereto; and
(cd) exercise the voting rights attaching to the Subject Company Shares and otherwise use the Seller’s 's commercially reasonable efforts in the Seller’s 's capacity as a shareholder of the Company Shareholder to oppose any proposed action by the CompanyCompany or its Subsidiaries, its shareholders, its Subsidiaries the Shareholders or any other person: person (iA) in respect of any merger, take-over bid, amalgamation, plan of arrangement, business combination or similar transaction Acquisition Proposal involving the Company or its Subsidiaries, other than the Offer; (iiB) which would reasonably be regarded as being directed towards may in any manner adversely affect, by delay or likely to prevent or delay otherwise, the take-up of and payment for the Subject Company Shares deposited under the Offer or the successful completion of the Offer, including without limitation limitation, any amendment to the articles memorandum or by-laws articles, constating documents or corporate structure of the Company or its corporate structure; Company, or (iiiC) which would reasonably be expected to result in a Company Material Adverse Effect. In connection therewith, the Seller hereby appoints Offeror as the Parent as its Seller's attorney in fact (which appointment is unconditional, irrevocable (subject to Article 56), and is coupled with an interest) for and on his such Seller's behalf to execute a proxy appointing a person designated by the Parent Offeror to attend and act on behalf of the Seller at any meeting of shareholders of the Company Shareholders and to execute one or more Shareholder consents or other Shareholder approval documents in respect of any of the matters referred to in this Section 2.2(c); provided that if, pursuant to this power of attorney, the Parent has executed and not revoked a proxy in respect of such a meeting, which proxy has been accepted by the Company, then in such circumstances the Seller shall not be responsible for voting under this Section 2.2(c2.2(d). The Parent Offeror shall advise the Seller upon executing any proxies or Shareholder consents or other Shareholder approval documents in respect of the Subject Company Shares held by the Seller.
2.3 Each Seller covenants to co-operate with the Parent and the Offeror in making all requisite regulatory filings.
2.4 Nothing in this Article 2 shall prevent a Seller who is a member of the board of directors of the Company or is a senior officer of the Company from engaging, in such Seller'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 Acquisition Proposal made in writing to the board of directors of the Company by such person (which Acquisition Proposal did not result from a breach of this Lock-Up Agreement or the Support Agreement) in circumstances where the Company is permitted by section 3.3(a) of the Support Agreement to engage in such discussions or negotiations. For greater certainty, each Seller acknowledges that this Section 2.4 shall not affect such Seller's obligation to deposit or cause to be deposited (and, except as permitted by this Lock-Up Agreement, not withdraw or cause to be withdrawn) the Subject Shares under the Offer in accordance with the terms and conditions of this Lock-Up Agreement.
(a) Upon prior written notice to the Offeror prior to the 15th calendar day after the mailing of the Offer, a Seller may transfer any of its Subject Shares:
(i) as a bona fide gift or gifts, provided that prior to such transfer the donee or donees agrees to be bound by the terms and conditions of this Agreement and delivers an executed counterpart of this Agreement prior to such transfer as if it were an original party hereto;
(ii) to any trust for the direct or indirect benefit of the undersigned or immediate family of the undersigned, provided that prior to such transfer the trustees of the trust agree to be bound by the terms and conditions of this Agreement and delivers an executed counterpart of this Agreement prior to such transfer as if it were an original party hereto; or
(iii) to any affiliate, provided that prior to such transfer the affiliate agrees to be bound by the terms and conditions of this Agreement and deliver an executed counterpart of this Agreement prior to such transfer as if it were an original party hereto.
(b) No transfers pursuant to this Section 2.5 shall relieve Offeror or such Seller, as applicable, of its obligations hereunder.
(c) For purposes of this agreement, "immediate family" shall mean any relationship by blood, marriage or adoption, not more remote than first cousin and "affiliate" shall have the meaning attributed to it under the Business Corporations Act (British Columbia).
Appears in 1 contract
Covenants of the Sellers. 2.1 Each Seller hereby agrees that he he, she or it shall not, from the date hereof until the earlier of: of (i) the termination of this Agreement pursuant to Article 5; Section 5 and (ii) the Expiry Time, except in accordance with the terms of this Agreement:
(a) except to the extent permitted by Sections 2.1(d) and 2.2(a), take any action, directly or indirectly, which may in any way adversely affect in any material respect the success of the Offer or the purchase of any Company Shares under the Offer;
(b) acquire direct or indirect beneficial ownership or holding of or control or direction over any additional Company Shares or obtain or enter into any right to do soShares, with the exception of any Company Shares acquired pursuant to the exercise of Optionsthe Options or Warrants as contemplated in Section 3.2 hereof;
(cb) grant or agree to grant deposit any proxy or other right to the Subject Company Shares, or enter into Shares in any voting trust or pooling agreement or arrangement or enter into or subject any of such Subject Company Shares to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting thereof;
(dc) in any manner, directly or indirectly, through any officerseek, director, employee, representative (including for greater certainty any financial or other advisors) or agent or otherwise (as applicable), make, solicit, assistpropose, initiate, encourage support, induce, participate with or otherwise facilitate provide any inquiries, proposals encouragement or offers from assistance to any other person with respect to or relating to any person regarding an Acquisition Proposal, seeking or attempting to seek or engage in any discussions activity or negotiations regarding any Acquisition Proposalact with respect to the effective control of VFC, whether as a shareholder or otherwise co-operate in any way withotherwise, either alone or assist or participate in, knowingly facilitate or encourage any effort or attempt by with any other person to do or seek to do any of the foregoingpersons; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board board of Directors directors of VFC or is a senior officer of the Company VFC from engaging, in such capacity, in discussions or negotiations with a person in response responding to a bona fide written Acquisition Superior Proposal (as defined in the Support Agreement) made by a such person third party which did not result from a breach of this Agreement or the Support Agreement and Agreement, in respect of which (i) the Board board of Directors determines in good faith constitutes a Superior directors of VFC has agreed to accept, approve or recommend, or enter into any agreement relating to, the Acquisition Proposal on the basis provided for in accordance with Section 6.2(a6.2(f) of the Support Agreement; and (ii) in respect of which the Board of Directors, after receiving advice of the Company’s outside legal counsel reflected in the minutes of the Board of Directors to such effect, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties under all applicable laws;
(ed) solicit solicit, or arrange or provide assistance to any other person to arrange for the solicitation of, purchases of or offers to sell Company Shares or act in concert or jointly with any other person for the purpose of acquiring Company Shares or the purpose of affecting the control of the CompanyVFC;
(fe) option, sell, assign, dispose of, pledge, encumber, grant a security interest in or otherwise convey any Options or Subject Company Shares or any right or interest therein, or enter into a stock lending arrangement with respect to any Subject Company Shares, or agree to do any of the foregoing except pursuant to the Offer and this Agreement;Offer; and
(gf) vote or cause to be voted any of the Seller’s Subject Company Shares in respect of any proposed action by the Company or its shareholders or affiliates or any other person in a manner which would reasonably be regarded as likely to prevent or delay the successful completion of the Offer;
(h) except as required by applicable laws, prior to the public announcement by the Parent of its intention to cause the Offeror to make the Offer, directly or indirectly, disclose to any person, firm or corporation (other than the Company and the financial and legal advisors of the Company) the existence of the terms and conditions of this Agreement, or the possibility of the Parent or the Offeror making the Offer or any terms or conditions or other information concerning the Offer; or
(i) not take any action to encourage or assist any other person to do any of the prohibited acts referred to in foregoing provisions of this Section 2.1.
2.2 Each Seller hereby agrees that he shall, from the date hereof until the earlier of: (i) the termination of this Agreement pursuant to Article 5; and (ii) the Expiry Time, except in accordance with the terms of this Agreement:
(a) immediately cease any existing solicitations, discussions or negotiations he is engaged in with any person other than the Parent and the Offeror with respect to any potential Acquisition Proposal and request the return or destruction of all confidential information provided in connection therewith; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support Agreement;
(b) as soon as reasonably practicable notify the Parent and the Offeror of: (i) any proposal, inquiry, offer (or any amendment thereto) or request that the Seller receives, or of which the Seller becomes aware, that relates to, or constitutes, or which the Seller reasonably believes could lead to, a bona fide Acquisition Proposal; or (ii) any request that the Seller receives for discussions or negotiations relating to an Acquisition Proposal or any request for non-public information relating to the Company or its Subsidiaries or any of their respective mineral properties by any person or entity that informs the Seller that it is considering making, or has made, an Acquisition Proposal. Such notice to the Parent and the Offeror shall be made, from time to time, orally and in writing and shall include a description of the terms and conditions of any such proposal, inquiry, offer (including any amendment thereto) or request and shall include copies of any such proposal, inquiry, offer or request or any amendment to any of the foregoing; and
(c) exercise the voting rights attaching to the Subject Company Shares and otherwise use the Seller’s commercially reasonable efforts in the Seller’s capacity as a shareholder of the Company to oppose any proposed action by the Company, its shareholders, its Subsidiaries or any other person: (i) in respect of any merger, take-over bid, amalgamation, plan of arrangement, business combination or similar transaction involving the Company or its Subsidiaries, other than the Offer; (ii) which would reasonably be regarded as being directed towards or likely to prevent or delay the take-up of and payment for the Subject Company Shares deposited under the Offer or the successful completion of the Offer, including without limitation any amendment to the articles or by-laws of the Company or its corporate structure; or (iii) which would reasonably be expected to result in a Company Material Adverse Effect. In connection therewith, the Seller hereby appoints the Parent as its attorney in fact (which appointment is unconditional, irrevocable (subject to Article 5), and is coupled with an interest) for and on his behalf to execute a proxy appointing a person designated by the Parent to attend and act on behalf of the Seller at any meeting of shareholders of the Company in respect of any of the matters referred to in this Section 2.2(c); provided that if, pursuant to this power of attorney, the Parent has executed and not revoked a proxy in respect of such a meeting, which proxy has been accepted by the Company, then in such circumstances the Seller shall not be responsible for voting under this Section 2.2(c). The Parent shall advise the Seller upon executing any proxies in respect of the Subject Company Shares held by the Seller.
2.3 Each Seller covenants to co-operate with the Parent and the Offeror in making all requisite regulatory filings.
Appears in 1 contract
Covenants of the Sellers. 2.1 Each Seller hereby agrees that he shall notagrees, from the date hereof until the earlier of: (i) the termination of this Lock-Up Agreement pursuant to Article 56; and (ii) the Expiry Effective Time, except in accordance with the terms of this Lock-Up Agreement, not to:
(a) except to the extent permitted by Sections 2.1(d) and 2.2(a), take any action, directly or indirectly, which may in any way adversely affect in any material respect the success of the Offer or the purchase of any Company Shares under the Offer;
(b) acquire direct or indirect beneficial ownership or holding control of or control or direction over any additional Company Shares or Options or obtain or enter into any right to do so, with the exception of any Company Shares acquired pursuant to the exercise of OptionsOptions as contemplated by Section 3.2 hereof and any Bonus Shares listed immediately below such Seller’s Acceptance;
(b) 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 Options or Subject Shares or any right or interest in either, or agree to do any of the foregoing except pursuant to the Offer or pursuant to Section 2.5;
(c) grant or agree to grant any proxy or other right to the Subject Company Shares, or enter into any voting trust or pooling agreement or arrangement or enter into or subject any of such Subject Company Shares to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting thereof;
(d) in any manner, directly or indirectly, including through any officer, director, employee, representative (including for greater certainty any financial or other advisors) or agent or otherwise (as applicable), makeRepresentative, solicit, assist, initiate, or knowingly encourage or otherwise facilitate any inquiries, proposals proposals, offers or offers public announcements (or the submission or initiation of any of the foregoing) from any person regarding an any Acquisition Proposal, engage in any negotiations concerning, or provide any information to, or have any discussions with or negotiations regarding otherwise cooperate with, any person relating to an Acquisition Proposal, or otherwise co-operate in any way with, or assist or participate in, knowingly facilitate or knowingly encourage any effort or attempt by any other person to do make or seek to do any of the foregoing; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written implement an Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which (i) the Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support Agreement; and (ii) in respect of which the Board of Directors, after receiving advice of the Company’s outside legal counsel reflected in the minutes of the Board of Directors to such effect, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties under all applicable lawsProposal;
(e) solicit or arrange or provide assistance to any other person to arrange for the solicitation of, purchases of or offers to sell Company Shares or act in concert or jointly with any other person for the purpose of acquiring Company Shares or for the purpose of affecting the control of the Company;
(f) option, sell, assign, dispose of, pledge, encumber, grant a security interest deposit or cause to be deposited such Seller’s Subject Shares under any Acquisition Proposal nor support any Acquisition Proposal in or otherwise convey any Options or Subject Company Shares or any right or interest therein, or enter into a stock lending arrangement with respect to any Subject Company Shares, or agree to do any of the foregoing except pursuant to the Offer and this Agreementmanner whatsoever;
(g) vote or cause to be voted any of the Seller’s Subject Company Shares in respect of any proposed action by the Company or its shareholders or affiliates or any other person in a manner which would reasonably be regarded as likely to prevent or delay the successful completion of the Offer;
(h) except as required by applicable lawsLaws, prior to the public announcement by the Parent Offeror of its intention to cause the Offeror to make the Offer, directly or indirectly, disclose to any person, firm or corporation person (other than the Company and the its financial and legal advisors of the Companyadvisors) the existence of this Lock-Up Agreement or the terms and conditions of this Lock-Up Agreement, or the possibility of the Parent or the Offeror making the Offer or any terms or conditions or other information concerning the Offer;
(h) 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 Support Agreement; orand
(i) not 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 2.1.
2.2 Each Seller hereby agrees that he shallagrees, from the date hereof until the earlier of: (i) the termination of this Lock-Up Agreement pursuant to Article 56; and (ii) the Expiry Effective Time, except in accordance with the terms of this Lock-Up Agreement:
(a) , to immediately cease, cause its Representatives to cease and cause to be terminated any existing solicitations, discussions or negotiations he is engaged in with any person parties (other than the Parent and Offeror or any Representative of the Offeror Offeror) with respect to any Acquisition Proposal or any potential Acquisition Proposal and request the return or destruction of Proposal.
2.3 Each Seller covenants to co-operate with Offeror in making all confidential information provided requisite regulatory filings.
2.4 Nothing in connection therewith; provided, however, that the foregoing this Article 2 shall not prevent a Seller who is a member of the Board board of Directors directors of the Company or is a senior officer of the Company from engaging, in such capacitySeller’s capacity as a director or senior officer of the Company, in discussions or negotiations with a person in response to a an unsolicited bona fide written Acquisition Proposal made in writing to the board of directors of the Company by a such person (which Acquisition Proposal did not result from a breach of this Lock-Up Agreement or the Support Agreement and which Board of Directors determines Agreement) in good faith constitutes a Superior Acquisition Proposal on circumstances where the basis provided for in Section 6.2(aCompany is permitted by section 3.3(a) of the Support Agreement;
(b) as soon as reasonably practicable notify the Parent and the Offeror of: (i) any proposal, inquiry, offer (or any amendment thereto) or request that the Seller receives, or of which the Seller becomes aware, that relates to, or constitutes, or which the Seller reasonably believes could lead to, a bona fide Acquisition Proposal; or (ii) any request that the Seller receives for Agreement to engage in such discussions or negotiations relating negotiations. For greater certainty, each Seller acknowledges that this Section 2.4 shall not affect such Seller’s obligation to an Acquisition Proposal deposit or any request for noncause to be deposited (and, except as permitted by this Lock-public information relating Up Agreement, not withdraw or cause to be withdrawn) the Company or its Subsidiaries or any of their respective mineral properties by any person or entity that informs Subject Shares under the Seller that it is considering making, or has made, an Acquisition Proposal. Such notice to the Parent and the Offeror shall be made, from time to time, orally and Offer in writing and shall include a description of accordance with the terms and conditions of this Lock-Up Agreement.
(a) Upon prior notice to the Offeror prior to the 15th calendar day after the mailing of the Offer, a Seller may transfer any of its Subject Shares;
(i) as a bona fide gift or gifts, provided that prior to such proposal, inquiry, offer transfer the donee or donees agrees to be bound by the terms and conditions of this Agreement and delivers an executed counterpart of this Agreement prior to such transfer as if it were an original party hereto;
(including any amendment theretoii) or request and shall include copies of any such proposal, inquiry, offer or request or any amendment to any trust for the direct or indirect benefit of the foregoingundersigned or immediate family of the undersigned, provided that prior to such transfer the trustees of the trust agree to be bound by the terms and conditions of this Agreement and delivers an executed counterpart of this Agreement prior to such transfer as if it were an original party hereto; andor
(iii) to any affiliate, provided that prior to such transfer the affiliate agrees to be bound by the terms and conditions of this Agreement and deliver an executed counterpart of this Agreement prior to such transfer as if it were an original party hereto.
(b) No transfers pursuant to this Section 2.5 shall relieve Offeror or such Seller, as applicable, of its obligations hereunder.
(c) exercise For purposes of this agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin and “affiliate” shall have the voting rights attaching meaning attributed to the Subject Company Shares and otherwise use the Seller’s commercially reasonable efforts in the Seller’s capacity as a shareholder of the Company to oppose any proposed action by the Company, its shareholders, its Subsidiaries or any other person: (i) in respect of any merger, take-over bid, amalgamation, plan of arrangement, business combination or similar transaction involving the Company or its Subsidiaries, other than the Offer; (ii) which would reasonably be regarded as being directed towards or likely to prevent or delay the take-up of and payment for the Subject Company Shares deposited it under the Offer or the successful completion of the Offer, including without limitation any amendment to the articles or by-laws of the Company or its corporate structure; or Business Corporations Act (iii) which would reasonably be expected to result in a Company Material Adverse Effect. In connection therewith, the Seller hereby appoints the Parent as its attorney in fact (which appointment is unconditional, irrevocable (subject to Article 5British Columbia), and is coupled with an interest) for and on his behalf to execute a proxy appointing a person designated by the Parent to attend and act on behalf of the Seller at any meeting of shareholders of the Company in respect of any of the matters referred to in this Section 2.2(c); provided that if, pursuant to this power of attorney, the Parent has executed and not revoked a proxy in respect of such a meeting, which proxy has been accepted by the Company, then in such circumstances the Seller shall not be responsible for voting under this Section 2.2(c). The Parent shall advise the Seller upon executing any proxies in respect of the Subject Company Shares held by the Seller.
2.3 Each Seller covenants to co-operate with the Parent and the Offeror in making all requisite regulatory filings.
Appears in 1 contract
Samples: Lock Up Agreement (China Minmetals Non-Ferrous Metals Co.Ltd.)
Covenants of the Sellers. 2.1 Each Seller hereby agrees that he shall not, from the date hereof until the earlier of: (i) the termination of this Agreement pursuant to Article 5; and (ii) the Expiry Time, except in accordance with the terms of this Agreement:SECTION 8.1 CONDUCT OF BUSINESS PRIOR TO THE CLOSING DATE.
(a) Without the prior written consent of the Buyer, between the date hereof and the Closing Date, the Sellers shall not, and shall cause the Purchased Companies not to, except (1) as required or expressly permitted pursuant to the extent permitted by Sections 2.1(dterms hereof, (2) and 2.2(aas set forth on SCHEDULE 8.1(a), take any action, directly or indirectly, which may in any way adversely affect in (3) the prior written consent of the Buyer:
(i) make any material respect change in the success conduct of the Offer or the purchase of any Company Shares under the Offer;
(b) acquire direct or indirect beneficial ownership or holding of or control or direction over any additional Company Shares or obtain Business or enter into any right to do so, transaction other than in the ordinary course of business consistent with the exception of any Company Shares acquired pursuant to the exercise of Optionspast practices;
(cii) grant or agree to grant make any proxy sale, transfer, or other right conveyance of any assets of any of the Purchased Companies in an amount greater than $10,000, other than in the ordinary course of business consistent with past practices (except as otherwise provided in subclause (xii) of this SECTION 8.1(a));
(iii) subject any of the assets owned by the Purchased Companies to the Subject Company Sharesany Lien;
(iv) pay, lend or advance any amount to, or sell, transfer or lease any properties or assets to, or enter into any voting trust or pooling agreement or arrangement or enter into or subject with, any of such Subject Company Shares to any other agreement, arrangement, understanding or commitment, formal or informal, its Affiliates with respect to the Purchased Companies, other than in the ordinary course of business consistent with past practices (except as otherwise provided in subclause (xii) of this SECTION 8.1(a));
(v) take any action that would cause any of the representations and warranties made by it in this Agreement not to remain true and correct;
(vi) write down or write off as uncollectable any of the Accounts Receivable;
(vii) settle, release or forgive any Claim or litigation or waive any right thereto with respect to the Purchased Companies or the Business except claims that are Seller Liabilities (provided, however, that any liability resulting from any such settlement, release or forgiveness shall constitute a Seller Liability);
(viii) make, enter into, modify, amend in any material respect or terminate any of the Contracts, bids or expenditures with respect to the Business involving an expenditure of more than $50,000, other than as set forth in Section (viii) of SCHEDULE 8.1(a), which agreements the Sellers may continue to negotiate and enter into for so long as they exercise commercially reasonable judgment and keep the Buyer informed as to progress and terms;
(ix) make, change or revoke any election or method of accounting with respect to the Taxes affecting or relating to the voting thereofPurchased Companies;
(dx) in enter into, or permit to be entered into, any manner, directly or indirectly, through any officer, director, employee, representative (including for greater certainty any financial closing or other advisorsagreement or settlement with respect to the Taxes affecting or relating to the Purchased Companies;
(xi) adopt any new employee benefit plan or agent or otherwise (as applicable), make, solicit, assist, initiate, encourage or otherwise facilitate any inquiries, proposals or offers from any person regarding an Acquisition Proposal, engage in any discussions or negotiations regarding any Acquisition Proposalarrangement for Business Employees, or otherwise co-operate in any way withincrease the compensation of Business Employees;
(xii) cause or permit the Purchased Companies to distribute or pay, or assist authorize the distribution or participate inpayment by the Purchased Companies of, knowingly facilitate any cash or encourage other assets or property to Sellers or any effort of their Affiliates, except with respect to (A) amounts payable to Sellers in repayment of amounts that Sellers or attempt by any other person their Affiliates contributed or advanced to do the Purchased Companies on or seek after June 1, 2001 to fund the operating expenses of the Purchased Companies if, but only to the extent that, such contributed or advanced amounts exceeded Sellers' 50% pro rata share of such operating expenses; and (B) Seller Distributions; or
(xiii) commit to do any of the foregoing; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which (i) the Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support Agreement; and (ii) in respect of which the Board of Directors, after receiving advice of the Company’s outside legal counsel reflected in the minutes of the Board of Directors to such effect, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties under all applicable laws;.
(eb) solicit or arrange or provide assistance to any other person to arrange for From and after the solicitation ofdate hereof through the Closing Date, purchases of or offers to sell Company Shares or act in concert or jointly with any other person for the purpose of acquiring Company Shares or the purpose of affecting the control of the Company;
(f) optionSellers shall, sell, assign, dispose of, pledge, encumber, grant a security interest in or otherwise convey any Options or Subject Company Shares or any right or interest therein, or enter into a stock lending arrangement with respect to any Subject Company Shares, or agree to do any of the foregoing except pursuant to the Offer and this Agreement;
(g) vote or cause to be voted any of the Seller’s Subject Company Shares in respect of any proposed action by the Company or its shareholders or affiliates or any other person in a manner which would reasonably be regarded as likely to prevent or delay the successful completion of the Offer;
(h) except as required by applicable laws, prior to the public announcement by the Parent of its intention to shall cause the Offeror to make the OfferPurchased Companies, directly or indirectly, disclose to any person, firm or corporation (other than the Company and the financial and legal advisors of the Company) the existence of the terms and conditions of this Agreement, or the possibility of the Parent or the Offeror making the Offer or any terms or conditions or other information concerning the Offer; orto:
(i) not take any action continue to encourage or assist any other person to do any of maintain, in all material respects, the prohibited acts referred to Business in foregoing provisions of this Section 2.1.accordance with present practice in a condition suitable for their current use;
2.2 Each Seller hereby agrees that he shall, from the date hereof until the earlier of: (i) the termination of this Agreement pursuant to Article 5; and (ii) file, when due or required, its Federal, state, foreign and other Tax Returns required to be filed and pay when due all the Expiry TimeTaxes, except unless the validity thereof is contested in accordance with the terms of this Agreement:good faith and by appropriate proceedings diligently conducted;
(aiii) immediately cease any keep, and cause the Purchased Companies to keep, the Files and Records in the ordinary course consistent with past practices;
(iv) use commercially reasonable efforts to continue, and to cause the Purchased Companies to continue, to maintain existing solicitations, discussions or negotiations he is engaged in business relationships with any person other than the Parent and the Offeror customers with respect to any potential Acquisition Proposal and request the return or destruction of all confidential information provided in connection therewith; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support AgreementBusiness;
(bv) as soon as reasonably practicable notify the Parent pay and the Offeror of: (i) any proposal, inquiry, offer (or any amendment thereto) or request that the Seller receives, or of which the Seller becomes aware, that relates to, or constitutes, or which the Seller reasonably believes could lead to, a bona fide Acquisition Proposal; or (ii) any request that the Seller receives for discussions or negotiations relating to an Acquisition Proposal or any request for non-public information relating to the Company or its Subsidiaries or any of their respective mineral properties by any person or entity that informs the Seller that it is considering making, or has made, an Acquisition Proposal. Such notice to the Parent satisfy when due all payables and the Offeror shall be made, from time to time, orally and in writing and shall include a description payroll expenses of the terms Purchased Companies as and conditions of any such proposal, inquiry, offer (including any amendment thereto) or request and shall include copies of any such proposal, inquiry, offer or request or any amendment to any of the foregoingwhen due consistent with past practice; and
(vi) notify the Buyer no later than three (3) Business Days following the date of any notice or other communication from any Governmental Authority, in connection with the transactions contemplated by this Agreement.
(c) exercise the voting rights attaching Notwithstanding anything in this Section 8.1 to the Subject Company Shares and otherwise use the Seller’s commercially reasonable efforts contrary, nothing contained in the Seller’s capacity as a shareholder of the Company to oppose any proposed action by the Companythis Section 8.1 shall prevent, its shareholders, its Subsidiaries or any other person: (i) in respect of any merger, take-over bid, amalgamation, plan of arrangement, business combination or similar transaction involving the Company or its Subsidiaries, other than the Offer; (ii) which would reasonably be regarded as being directed towards or likely to prevent inhibit or delay the take-up ability of any Seller from taking any and payment for the Subject Company Shares deposited all action to enforce all of its rights under the Offer or the successful completion New Heights LLC Agreement and under that certain Operation and Maintenance Agreement, dated as of the OfferDecember 29, including without limitation any amendment to the articles or by-laws of the Company or its corporate structure; or (iii) which would reasonably be expected to result in a Company Material Adverse Effect. In connection therewith1998, the Seller hereby appoints the Parent as its attorney in fact (which appointment is unconditionalby and between KTI Operations, irrevocable (subject to Article 5), Inc. and is coupled with an interest) for and on his behalf to execute a proxy appointing a person designated by the Parent to attend and act on behalf of the Seller at any meeting of shareholders of the Company in respect of any of the matters referred to in this Section 2.2(c); provided that if, pursuant to this power of attorney, the Parent has executed and not revoked a proxy in respect of such a meeting, which proxy has been accepted by the Company, then in such circumstances the Seller shall not be responsible for voting under this Section 2.2(c). The Parent shall advise the Seller upon executing any proxies in respect of the Subject Company Shares held by the SellerNew Heights.
2.3 Each Seller covenants to co-operate with the Parent and the Offeror in making all requisite regulatory filings.
Appears in 1 contract
Covenants of the Sellers. 2.1 Each Seller hereby agrees that he shall notagrees, from the date hereof until the earlier of: (i) the termination of this Lock-Up Agreement pursuant to Article 5; and (ii) the Expiry Time, except in accordance with the terms of this Lock-Up Agreement, not to:
(a) except to the extent permitted by Sections 2.1(d) and 2.2(a), take any action, directly or indirectly, which may in any way adversely affect in any material respect the success of the Offer or the purchase of any Company Shares under the Offer;
(b) acquire direct or indirect beneficial ownership or holding of or control or direction over any additional Company Common Shares or obtain or enter into any right to do so, with the exception of any Company Common Shares acquired pursuant to the exercise of OptionsOptions or pursuant to Performance Rights, as contemplated in Section 3.2 hereof;
(cb) grant or agree to grant any proxy or other right to the Subject Company Common Shares, or enter into any voting trust or pooling agreement or arrangement or enter into or subject any of such Subject Company Common Shares to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting thereof;
(dc) in any manner, directly or indirectly, including through any officer, director, employee, representative (including for greater certainty any financial or other advisors) or agent or otherwise (as applicable), make, solicit, assist, initiate, encourage or otherwise facilitate any inquiries, proposals or offers from any person regarding an Acquisition Proposal, engage in any discussions or negotiations regarding regarding, or provide any information with respect to, any Acquisition Proposal, or otherwise co-operate in any way with, or assist or participate in, knowingly or facilitate or encourage any effort or attempt by any other person to do or seek to do any of the foregoing; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which (i) the Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support Agreement; and (ii) in respect of which the Board of Directors, after receiving advice of the Company’s outside legal counsel reflected in the minutes of the Board of Directors to such effect, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties under all applicable laws;
(ed) solicit or arrange or provide assistance to any other person to arrange for the solicitation of, purchases of or offers to sell Company Common Shares or act in concert or jointly with any other person for the purpose of acquiring Company Common Shares or for the purpose of affecting the control of the CompanyGoldbelt;
(fe) option, sell, assign, dispose of, pledge, encumbercreate an Encumbrance on, grant a security interest in or otherwise convey any Options Options, Performance Rights or Subject Company Common Shares or any right or interest therein, or enter into a stock lending arrangement with respect to any Subject Company Shares, or agree to do any of the foregoing except pursuant to the Offer and this Lock-Up Agreement;
(g) vote or cause to be voted any of the Seller’s Subject Company Shares in respect of any proposed action by the Company or its shareholders or affiliates or any other person in a manner which would reasonably be regarded as likely to prevent or delay the successful completion of the Offer;
(hf) except as required by applicable lawsLaw, prior to the public announcement by the Parent of its intention to cause the Offeror to make the Offer, directly or indirectly, disclose to any person, firm or corporation person (other than the Company Goldbelt and the financial and legal advisors of the CompanyGoldbelt) the existence of the terms and conditions of this Lock-Up Agreement, or the possibility of the Parent or the Offeror making the Offer or any terms or conditions or other information concerning the Offer; orand
(ig) not 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 2.1.
2.2 Each Seller hereby agrees that he shallagrees, from the date hereof until the earlier of: (i) the termination of this Lock-Up Agreement pursuant to Article 5; and (ii) the Expiry Time, except in accordance with the terms of this Lock-Up Agreement, to:
(a) immediately cease any existing solicitations, discussions or negotiations he it is engaged in with any person other than the Parent, Offeror or another Parent and the Offeror Subsidiary with respect to or which could lead to any potential Acquisition Proposal and request the return or destruction of all confidential information provided in connection therewith; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support AgreementProposal;
(b) as soon as reasonably practicable promptly (and in any event within 24 hours after it has received any proposal, inquiry, offer or request) notify the Parent Parent, at first orally and the Offeror then in writing of: (i) any proposal, inquiry, offer or request (or any amendment thereto) or request that the Seller receives, or of which the Seller becomes aware, that relates to, or constitutes, or which the Seller reasonably believes could lead to, constitutes a bona fide Acquisition Proposal; or (ii) any request that the Seller receives for discussions or negotiations relating to an Acquisition Proposal or any request for non-public information relating to Goldbelt or any of the Company or its Goldbelt Subsidiaries or any Goldbelt mineral property or contractual or legal rights or for access to properties, books and records or a list of their respective mineral properties by the Shareholders of Goldbelt or any person or entity that informs the Seller that it is considering making, or has made, an Acquisition ProposalGoldbelt Subsidiary. Such notice to the Parent and the Offeror shall be made, from time to time, orally and in writing and shall include a description of the terms and conditions of, and the identity of the person making, any such proposal, inquiry, offer or request (including any amendment thereto) or request and shall include copies of any such proposal, inquiry, offer or request or any amendment to any of the foregoing. The Seller shall also provide such other details of the proposal, inquiry, offer or request, or any amendment to the foregoing, as Parent may reasonably request. The Seller shall keep Parent promptly and fully informed of the status, including any change to the material terms, of any such proposal, inquiry, offer or request, or any amendment to the foregoing, and will respond promptly to all inquiries by Parent with respect thereto; and
(c) exercise the voting rights attaching to the Subject Company Shares Common Shares, execute shareholder consents and other shareholder approval documents and otherwise use the Seller’s commercially reasonable efforts in the Seller’s capacity as a shareholder of Goldbelt (i) to facilitate the Company consummation of the transactions contemplated in the Support Agreement; and (ii) to oppose any proposed action by Goldbelt, the CompanyShareholders, its shareholders, its any of the Goldbelt Subsidiaries or any other person: person (iA) in respect of any merger, take-over bid, amalgamation, plan of arrangement, business combination or similar transaction involving the Company Goldbelt or its Subsidiariesany Goldbelt Subsidiary, other than the Offer; , (iiB) which would reasonably be regarded as being directed towards or likely to prevent or delay the take-up of and payment for the Subject Company Common Shares deposited under the Offer or the successful completion of the Offer, including without limitation limitation, any amendment to the articles or by-laws of the Company Goldbelt or its corporate structure; , or (iiiC) which would reasonably be expected to result in a Company Material Adverse EffectEffect in respect of Goldbelt. In connection therewith, the Seller hereby appoints the Parent as its the Seller’s attorney in fact (which appointment is unconditional, irrevocable (subject to Article 5), and is coupled with an interest) for and on his such Seller’s behalf to execute a proxy appointing a person designated by the Parent to attend and act on behalf of the Seller at any meeting of shareholders of the Company Goldbelt and to execute one or more shareholder consents or other shareholder approval documents in respect of any of the matters referred to in this Section 2.2(c); provided that if, pursuant to this power of attorney, the (x) Parent has executed and not revoked a proxy in respect of such a meeting, which proxy has been accepted by the CompanyGoldbelt, or (y) Parent has executed a shareholder consent or other shareholder approval document, which consent or other document has been accepted by Goldbelt and any applicable regulatory authorities, then in such circumstances the Seller shall not be responsible for voting or for executing such consent or other document, as the case may be, under this Section 2.2(c). The Parent shall advise the Seller upon executing any proxies or shareholder consents or other shareholder approval documents in respect of the Subject Company Common Shares held by the Seller.
2.3 Each Seller covenants to co-operate with the Parent and the Offeror in making all requisite regulatory filings.
2.4 Nothing in this Article 2 shall prevent a Seller who is a member of the Board of Directors or is a senior officer of Goldbelt from engaging, in such Seller’s capacity as a director or senior officer of Goldbelt, in discussions or negotiations with a person in response to a bona fide Acquisition Proposal made by such person (which Acquisition Proposal did not result from a breach of a Lock-Up Agreement or the Support Agreement) in circumstances where Goldbelt is permitted by Section 6.2(a) of the Support Agreement to engage in such discussions or negotiations. For greater certainty, each such Seller acknowledges that this Section 2.4 shall not affect the Seller’s obligation to tender (and, except as permitted by this Lock-Up Agreement, not withdraw) the Subject Common Shares to the Offer in accordance with the terms and conditions of this Lock-Up Agreement.
Appears in 1 contract
Samples: Lock Up Agreement (Wega Mining Asa)
Covenants of the Sellers. 2.1 Each Seller hereby agrees that he shall not, from the date hereof until the earlier of: (i) the termination of this Agreement pursuant to Article 5; and (ii) the Expiry Time, except in accordance with the terms of this Agreement:
(a) except to the extent permitted by Sections 2.1(d) and 2.2(a), take any action, directly or indirectly, which may in any way adversely affect in any material respect the success of the Offer or the purchase of any Company Shares under the Offer;
(b) acquire direct or indirect beneficial ownership or holding of or control or direction over any additional Company Shares or obtain or enter into any right to do so, with the exception of any Company Shares acquired pursuant to the exercise of Options;
(c) grant or agree to grant any proxy or other right to the Subject Company Shares, or enter into any voting trust or pooling agreement or arrangement or enter into or subject any of such Subject Company Shares to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting thereof;
(d) in any manner, directly or indirectly, through any officer, director, employee, representative (including for greater certainty any financial or other advisors) or agent or otherwise (as applicable), make, solicit, assist, initiate, encourage or otherwise facilitate any inquiries, proposals or offers from any person regarding an Acquisition Proposal, engage in any discussions or negotiations regarding any Acquisition Proposal, or otherwise co-operate in any way with, or assist or participate in, knowingly facilitate or encourage any effort or attempt by any other person to do or seek to do any of the foregoing; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which (i) the Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support Agreement; and (ii) in respect of which the Board of Directors, after receiving advice of the Company’s 's outside legal counsel reflected in the minutes of the Board of Directors to such effect, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties under all applicable laws;
(e) solicit or arrange or provide assistance to any other person to arrange for the solicitation of, purchases of or offers to sell Company Shares or act in concert or jointly with any other person for the purpose of acquiring Company Shares or the purpose of affecting the control of the Company;
(f) option, sell, assign, dispose of, pledge, encumber, grant a security interest in or otherwise convey any Options or Subject Company Shares or any right or interest therein, or enter into a stock lending arrangement with respect to any Subject Company Shares, or agree to do any of the foregoing except pursuant to the Offer and this Agreement;
(g) vote or cause to be voted any of the Seller’s 's Subject Company Shares in respect of any proposed action by the Company or its shareholders or affiliates or any other person in a manner which would reasonably be regarded as likely to prevent or delay the successful completion of the Offer;
(h) except as required by applicable laws, prior to the public announcement by the Parent of its intention to cause the Offeror to make the Offer, directly or indirectly, disclose to any person, firm or corporation (other than the Company and the financial and legal advisors of the Company) the existence of the terms and conditions of this Agreement, or the possibility of the Parent or the Offeror making the Offer or any terms or conditions or other information concerning the Offer; or
(i) not take any action to encourage or assist any other person to do any of the prohibited acts referred to in foregoing provisions of this Section 2.1.
2.2 Each Seller hereby agrees that he shall, from the date hereof until the earlier of: (i) the termination of this Agreement pursuant to Article 5; and (ii) the Expiry Time, except in accordance with the terms of this Agreement:
(a) immediately cease any existing solicitations, discussions or negotiations he is engaged in with any person other than the Parent and the Offeror with respect to any potential Acquisition Proposal and request the return or destruction of all confidential information provided in connection therewith; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support Agreement;
(b) as soon as reasonably practicable notify the Parent and the Offeror of: (i) any proposal, inquiry, offer (or any amendment thereto) or request that the Seller receives, or of which the Seller becomes aware, that relates to, or constitutes, or which the Seller reasonably believes could lead to, a bona fide Acquisition Proposal; or (ii) any request that the Seller receives for discussions or negotiations relating to an Acquisition Proposal or any request for non-public information relating to the Company or its Subsidiaries or any of their respective mineral properties by any person or entity that informs the Seller that it is considering making, or has made, an Acquisition Proposal. Such notice to the Parent and the Offeror shall be made, from time to time, orally and in writing and shall include a description of the terms and conditions of any such proposal, inquiry, offer (including any amendment thereto) or request and shall include copies of any such proposal, inquiry, offer or request or any amendment to any of the foregoing; and
(c) exercise the voting rights attaching to the Subject Company Shares and otherwise use the Seller’s 's commercially reasonable efforts in the Seller’s 's capacity as a shareholder of the Company to oppose any proposed action by the Company, its shareholders, its Subsidiaries or any other person: (i) in respect of any merger, take-over bid, amalgamation, plan of arrangement, business combination or similar transaction involving the Company or its Subsidiaries, other than the Offer; (ii) which would reasonably be regarded as being directed towards or likely to prevent or delay the take-up of and payment for the Subject Company Shares deposited under the Offer or the successful completion of the Offer, including without limitation any amendment to the articles or by-laws of the Company or its corporate structure; or (iii) which would reasonably be expected to result in a Company Material Adverse Effect. In connection therewith, the Seller hereby appoints the Parent as its attorney in fact (which appointment is unconditional, irrevocable (subject to Article 5), and is coupled with an interest) for and on his behalf to execute a proxy appointing a person designated by the Parent to attend and act on behalf of the Seller at any meeting of shareholders of the Company in respect of any of the matters referred to in this Section 2.2(c); provided that if, pursuant to this power of attorney, the Parent has executed and not revoked a proxy in respect of such a meeting, which proxy has been accepted by the Company, then in such circumstances the Seller shall not be responsible for voting under this Section 2.2(c). The Parent shall advise the Seller upon executing any proxies in respect of the Subject Company Shares held by the Seller.
2.3 Each Seller covenants to co-operate with the Parent and the Offeror in making all requisite regulatory filings.
Appears in 1 contract
Covenants of the Sellers. 2.1 3.1 Each Seller hereby agrees that he shall not, from during the period commencing on the date hereof and continuing until the earlier of: of (i) the expiry or termination of this Agreement pursuant to Article 5; the Offer (as extended, if applicable) and (ii) the Expiry Time, except in accordance with withdrawal of the terms of Subject Shares (or the Holdco Shares) held by such Seller from the Offer as permitted by this Agreement:
(ai) except it or he will not take and shall not authorize or permit any investment banker, financial advisor, attorney, accountant or any other representative retained by it or him to the extent permitted by Sections 2.1(d) and 2.2(a), take any action, directly or indirectly, action of any kind which may in any way adversely affect in any material respect the success of the Offer or the purchase of any Company Common Shares under the Offer or the completion of the Offer;
(bii) acquire direct it or indirect beneficial ownership or holding of or control or direction over he will immediately cease and cause to be terminated any additional Company Shares or obtain or enter into existing discussions with any right to do so, with parties (other than the exception of any Company Shares acquired pursuant to the exercise of Options;
(cOfferor) grant or agree to grant any proxy or other right to the Subject Company Shares, or enter into any voting trust or pooling agreement or arrangement or enter into or subject any of such Subject Company Shares to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting thereof;any Acquisition Proposal (as defined below); and
(diii) in any mannerit or he will not, directly or indirectly, through any officer, director, employee, representative (including for greater certainty any financial or other advisors) or advisor, representative, agent or otherwise (as applicable), make, solicit, assist, initiate, initiate or encourage inquiries from or otherwise facilitate any inquiries, submission of proposals or offers from any person regarding other person, corporation, partnership or other business organization whatsoever (including any of its officers or employees) relating to any liquidation, dissolution, recapitalization, merger, amalgamation or acquisition or purchase of any equity interest (including the Common Shares) or of all or a material portion, on a consolidated basis, of the assets of the Company or any person, company, partnership, joint venture or other business organization in which the Company has an interest (the "Subsidiaries") or other similar transaction or business combination involving the Company or any of its Subsidiaries (any such foregoing inquiries or proposals, an "Acquisition Proposal"), engage or participate in any discussions or negotiations regarding regarding, or furnish to any Acquisition Proposalother person any information with respect to, or otherwise co-operate cooperate in any way with, or assist or participate in, knowingly facilitate or encourage encourage, any effort or attempt by any other person to do or seek to do any of the foregoing; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors director, officer or is a senior officer employee of the Company or any of its Subsidiaries from engaging, doing any act or thing that he properly is obliged to do in such capacitycapacity including, without limitation, responding in discussions or negotiations with his capacity as a person in response director to a any unsolicited bona fide written Acquisition Proposal (i) that is not subject to a financing contingency and in respect of which adequate arrangements have been made by a such person which did to ensure that the required funds will be available to effect payment in full for all Common Shares; (ii) that does not otherwise result from a breach of this Agreement subsection 3(a) or the Support Agreement and which (i) the Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) breach of the Support Agreement; and (iii) that the Board of Directors has determined in good faith (after consultation with its financial advisors and with outside counsel) is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of such proposal and the party making the proposal and, would, if consummated in accordance with its terms as proposed, result in a transaction which is more favorable to Shareholders from a financial point of view than the Offer (a "Superior Proposal"). For greater certainty, each such Seller acknowledges that the proviso to this subsection 3(a) shall not affect such Seller's obligation to tender (and, except as permitted by this Agreement, not withdraw) the Subject Shares (or the Holdco Shares) to the Offer pursuant to the terms and conditions of this Agreement. If any Seller receives any Acquisition Proposal (including an offer or invitation to enter into discussions), except where the Company has already done so, such Seller will immediately notify the Offeror in writing and provide to the Offeror all relevant details relating thereto, including, without limitation, the price proposed to be paid in connection with such Acquisition Proposal or offer, the form of consideration to be paid and the identity of the proponent;
(b) it or he will use its or his reasonable best efforts in its or his capacity as a shareholder of the Company to do, or cause to be done, all things necessary, proper or advisable under applicable Laws, to consummate the transactions contemplated by this Agreement and the Offer, including using its or his reasonable best efforts to (i) support the Offer; (ii) obtain all necessary consents, approvals and authorizations as are required to be obtained by such Seller under any applicable Law with respect to this Agreement or the Offer; (iii) lift or rescind any injunction or restraining order or other order adversely affecting such Seller's ability to consummate the transactions contemplated hereby or by the Offer; and (iv) fulfil all conditions and satisfy all provisions of this Agreement and the Offer applicable to such Seller; provided, however, that the foregoing shall not prevent a Seller who is a director, officer or employee of the Company or any of its Subsidiaries from doing any act or thing that he properly is obliged to do in such capacity, subject to compliance with the Support Agreement;
(c) it or he will exercise the voting rights attaching to the Subject Shares and otherwise use its or his best efforts in its or his capacity as a securityholder to oppose any proposed action by the Company, its shareholders, any of its Subsidiaries or any other person: (i) in respect of which the Board of Directorsany amalgamation, after receiving advice merger, sale of the Company’s outside legal counsel reflected 's or its affiliates' or associates' assets, take-over bid, plan of arrangement, reorganization, recapitalization, shareholder rights plan, liquidation or winding-up of, reverse take-over or other business combination or similar transaction involving the Company or any of its Subsidiaries, (ii) which might reasonably be regarded as being directed towards or likely to prevent or delay the take up and payment of the Subject Shares deposited under the Offer or the successful completion of the Offer, or (iii) which could result in a Material Adverse Effect. In connection therewith, each Seller hereby appoints Parent as attorney in fact (which appointment is unconditional, irrevocable and is coupled with an interest), subject to Section 6, for and on its or his behalf to execute a proxy appointing such person designated by Parent to attend and act on behalf of such Seller at any meeting of the Company in respect of any of the matters referred to in this subsection 3(c) and to act on behalf of such Seller on every action or approval by written consent of the shareholders of the Company in respect of such matters, and if pursuant to this power of attorney Parent has executed and not revoked a proxy in respect of such a meeting, which proxy has been accepted by the Company, then in such circumstances such Seller shall not be responsible for voting under this subsection 3(c). Parent shall advise such Seller upon executing any proxies in respect of such Seller;
(d) in the minutes of event that the Board of Directors implements a shareholders' rights plan, the Sellers shall forthwith exercise their rights as shareholders and requisition a meeting of shareholders of the Company to be held at the earliest possible meeting date after such effectrequisition, determines in good faith that the failure to and take such action would other steps as may be inconsistent with its fiduciary duties under all applicable lawsnecessary to cause such meeting to be held, to consider the termination of the shareholders' rights plan and, subject to subsection 3(c), shall vote to terminate such shareholders' rights plan;
(e) solicit it or arrange he will not grant or provide assistance agree to grant any proxy or other person right to arrange for the solicitation ofSubject Shares, purchases or enter into any voting trust, vote pooling or other agreement with respect to the right to vote, call meetings of shareholders or offers give consents or approvals of any kind with respect to sell Company Shares or act in concert or jointly with any the Subject Shares, other person for than to the purpose of acquiring Company Shares Parent or the purpose of affecting Offeror pursuant to the control of the Companyprovisions hereof;
(f) option, it or he will not sell, assign, dispose oftransfer, pledge, encumber, grant a security interest in in, hypothecate, encumber or otherwise convey or grant an option over any Options or Subject Company Shares (or any right or interest therein, therein (legal or enter into a stock lending arrangement with respect equitable)) held by it or him to any Subject Company Sharesperson, entity or group or agree to do any of the foregoing except pursuant to the Offer and this Agreementforegoing;
(g) vote or cause to be voted any of the Seller’s Subject Company Shares in respect of any proposed action by the Company or its shareholders or affiliates or any other person in a manner which would reasonably be regarded as likely to prevent or delay the successful completion of the Offer;
(h) except as required by applicable lawsLaw, it or he will not, prior to the public announcement by the Parent Offeror of its intention to cause the Offeror to make terms of the Offer, directly or indirectly, disclose to any person, firm or corporation (other than the Company and the financial and legal advisors of the Sellers and the Company) the existence of the terms and conditions of this Agreement, or the possibility of the Parent or the Offeror making the Offer being made or any terms or conditions or other information concerning any possible offer to be made for Common Shares;
(h) it or he will promptly advise the Offer; orOfferor orally and in writing of any Material Adverse Effect or any event, condition, change or development with respect to the Company which could reasonably be expected to cause the conditions to the Offer not to be satisfied, known or that becomes known to such Seller;
(i) it or he will not take purchase or obtain or enter into any action agreement or right to encourage purchase any additional Common Shares other than in accordance with the provisions hereof;
(j) it or assist any other person to do he will not sell, transfer, pledge, hypothecate, encumber, grant a security interest in or otherwise convey any of the prohibited acts referred Convertible Debentures issued to in foregoing provisions it or him;
(k) it or he will take all such steps as are required to ensure that at the time at which the Offeror becomes entitled to take up and pay for Common Shares pursuant to the Offer, and at the time at which the Offeror so takes up and pays for such Common Shares, the Subject Shares held by such Seller will be owned beneficially and of this Section 2.1record by such Seller with a good and marketable title thereto, free and clear of any and all mortgages, liens, charges, restrictions, security interests, adverse claims, pledges and encumbrances of any nature or kind whatsoever, and will not be subject to any shareholders' agreements, voting trust or similar agreements or any right or privilege (whether by Law, pre-emptive or contractual) capable of becoming a shareholders' agreement, voting trust or other agreement affecting the Subject Shares or the ability of any holder thereof to exercise all ownership rights thereto, including the voting of any such shares (collectively, "Encumbrances"); and
(l) a Seller employed by the Company agrees that at the time at which the Offeror takes up and pays for Common Shares, he shall resign as a director if requested by the Parent and shall forthwith thereafter resign from employment with the Company and its Subsidiaries at the request of the Parent and shall execute a full and final release of all and any employment claims (including claims for vacation, severance, change of control or termination pay) that such Seller may have except for salary and other benefits accrued and unpaid to the date of such request, provided that for greater certainty, conditional upon completion of the Offer, the Seller shall not be entitled to and hereby waives any right that he may have to vacation, severance, change of control or termination pay from the Company.
2.2 Each 3.2 In the event that a Seller hereby converts any Convertible Debentures, such Seller agrees to forthwith irrevocably deposit under the Offer all Common Shares issued upon the conversion of such Convertible Debentures.
3.3 The Sellers shall deliver to the Offeror and Parent, not more that he shallseven hours before the Expiry Time, from a certificate confirming that at the date hereof until the earlier of: Expiry Time (i) the termination representations and warranties of this Agreement pursuant to Article 5the Sellers are true and correct in all material respects; and (ii) the Expiry Time, except in accordance with the terms of this Agreement:
(a) immediately cease any existing solicitations, discussions or negotiations he is engaged in with any person other than the Parent and the Offeror with respect to any potential Acquisition Proposal and request the return or destruction of all confidential information provided in connection therewith; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer covenants and obligations of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written Acquisition Proposal made by a such person which did not result from a breach of Sellers under this Agreement have been performed or the Support Agreement and which Board of Directors determines complied with in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support Agreement;
(b) as soon as reasonably practicable notify the Parent and the Offeror of: (i) any proposal, inquiry, offer (or any amendment thereto) or request that the Seller receives, or of which the Seller becomes aware, that relates to, or constitutes, or which the Seller reasonably believes could lead to, a bona fide Acquisition Proposal; or (ii) any request that the Seller receives for discussions or negotiations relating to an Acquisition Proposal or any request for non-public information relating to the Company or its Subsidiaries or any of their respective mineral properties by any person or entity that informs the Seller that it is considering making, or has made, an Acquisition Proposal. Such notice to the Parent and the Offeror shall be made, from time to time, orally and in writing and shall include a description of the terms and conditions of any such proposal, inquiry, offer (including any amendment thereto) or request and shall include copies of any such proposal, inquiry, offer or request or any amendment to any of the foregoing; and
(c) exercise the voting rights attaching to the Subject Company Shares and otherwise use the Seller’s commercially reasonable efforts in the Seller’s capacity as a shareholder of the Company to oppose any proposed action by the Company, its shareholders, its Subsidiaries or any other person: (i) in respect of any merger, take-over bid, amalgamation, plan of arrangement, business combination or similar transaction involving the Company or its Subsidiaries, other than the Offer; (ii) which would reasonably be regarded as being directed towards or likely to prevent or delay the take-up of and payment for the Subject Company Shares deposited under the Offer or the successful completion of the Offer, including without limitation any amendment to the articles or by-laws of the Company or its corporate structure; or (iii) which would reasonably be expected to result in a Company Material Adverse Effect. In connection therewith, the Seller hereby appoints the Parent as its attorney in fact (which appointment is unconditional, irrevocable (subject to Article 5), and is coupled with an interest) for and on his behalf to execute a proxy appointing a person designated by the Parent to attend and act on behalf of the Seller at any meeting of shareholders of the Company in respect of any of the matters referred to in this Section 2.2(c); provided that if, pursuant to this power of attorney, the Parent has executed and not revoked a proxy in respect of such a meeting, which proxy has been accepted by the Company, then in such circumstances the Seller shall not be responsible for voting under this Section 2.2(c). The Parent shall advise the Seller upon executing any proxies in respect of the Subject Company Shares held by the Sellerall material respects.
2.3 Each Seller covenants to co-operate with the Parent and the Offeror in making all requisite regulatory filings.
Appears in 1 contract
Covenants of the Sellers. 2.1 Each Seller hereby agrees that he shall notcovenants, from with respect to itself and its Affiliated Persons, to the Purchaser as follows:
6.1 From the date hereof until the earlier of: (i) the termination of this Agreement pursuant to Article 5; and (ii) the Expiry Time, except in accordance with the terms of this Agreement:
(a) except to the extent permitted by Sections 2.1(d) and 2.2(a), take any actionsuch person will not, directly or indirectly, alone or in concert with others, for such person’s own account or with respect to an account over which may such person has discretionary authority, (a) acquire or offer to acquire, seek, propose or agree to acquire, by means of a purchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of any Voting Securities of the Fund, including rights or options to acquire such ownership, unless such person or account shall acquire such Voting Securities pursuant to all of the conditions of Section 6.2 at the time of the acquisition; (b) initiate or encourage, or in any way adversely affect in participate in, any material respect the success litigation, or seek to initiate or encourage any regulatory action or proceeding, against or on behalf of the Offer Fund or the purchase any of any Company Shares under the Offer;
(b) acquire direct or indirect beneficial ownership or holding of or control or direction over any additional Company Shares or obtain or enter into any right to do so, with the exception of any Company Shares acquired pursuant to the exercise of Options;
its Affiliated Persons; (c) grant make, or agree in any way participate in, any “solicitation” of “proxies” (as such terms are defined in Rule 14a-1 of Regulation 14A promulgated by the Securities and Exchange Commission pursuant to grant Section 14 of the Securities Exchange Act of 1934, disregarding clause (iv) of Rule 14a-1(l)(2) and including any proxy or other right solicitation that would otherwise be exempt pursuant to Rule 14a-2(b)), relating to the Subject Company SharesFund’s Voting Securities; call, or enter into in any way participate in a call for, any meeting of stockholders of the Fund, or for any action by written consent of stockholders; request, or take any action to obtain or retain any list of holders of any securities of the Fund or otherwise seek to inspect any books or records of the Fund; initiate or propose any stockholder proposal or participate in the making of, or solicit stockholders for the approval of, one or more stockholder proposals relating to the Fund; (d) deposit any Voting Securities in a voting trust or pooling subject them to any voting agreement or arrangement arrangements; (e) form, join or enter into or subject in any of such Subject Company Shares to any other agreement, arrangement, understanding or commitment, formal or informal, way participate in a group with respect to any Voting Securities (or any securities the ownership of which would make the owner thereof a beneficial owner of Voting Securities); (f) otherwise act to control or influence the Fund or the management, board of directors, policies or affairs of the Fund including, without limitation, (i) soliciting or proposing to effect or negotiate any amendment to the bylaws of the Fund, or any form of business combination, restructuring, recapitalization, open-ending, liquidation, repurchase of shares or other extraordinary transaction involving the Fund, its securities or assets or (ii) proposing any candidates for election to the board of directors or otherwise seeking board representation or the removal of any directors or a change in the composition or size of the board of directors of the Fund; (g) take any action or disclose any intent, purpose, plan or proposal with respect to this Agreement or the Fund, its Affiliated Persons or the management, policies or affairs or securities or assets of the Fund or its Affiliated Persons that is inconsistent with this Agreement, including any action, intent, purpose, plan or proposal that is conditioned on, or would require, waiver, amendment, nullification or invalidation of any provision of this Agreement, or take any action that could require the Fund or any of its Affiliated Persons to make any public disclosure relating to the voting thereof;
any such intent, purpose, plan, proposal or condition; or (dh) in any manner, directly or indirectly, through any officer, director, employee, representative (including for greater certainty any financial or other advisors) or agent or otherwise (as applicable), make, solicit, assist, initiateadvise, encourage or otherwise facilitate any inquiries, proposals or offers from have discussions with any person regarding an Acquisition Proposalwith respect to, engage in any discussions or negotiations regarding any Acquisition Proposal, or otherwise co-operate in any way with, or assist or participate in, knowingly facilitate or encourage any effort or attempt by any other person to do or seek to do do, any of the foregoing; provided.
6.2 Section 6.1 notwithstanding, howeverany such person may acquire Voting Securities of the Fund if such person immediately notifies the Fund in writing of the acquisition of such Voting Securities for such person or with respect to an account over which such person has discretionary authority, that specifying the foregoing shall not prevent name in which such Voting Securities are owned, and such person delivers to the Fund a Seller who is a member written undertaking to vote such Voting Securities in all instances in accordance with the recommendations of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response Fund.
6.3 Each Seller will use best efforts to a bona fide written Acquisition Proposal made by a such person which did not result from a breach cause its Affiliated Persons to observe each provision of this Agreement or as if such Affiliated Person were a party to this Agreement.
6.4 Each Seller agrees that the Support Agreement and which Purchaser, without prejudice to any rights to judicial relief the Purchaser may otherwise have, shall be entitled to seek equitable relief, including injunctive relief, in the event of any breach of the provisions of this Agreement. Each Seller agrees that (i) neither he/it nor, subject to Section 6.3, any of his/its Affiliated Persons will oppose the Board granting of Directors determines in good faith constitutes a Superior Acquisition Proposal such relief on the basis provided for in Section 6.2(a) of that the Support Agreement; Purchaser has an adequate remedy at law and (ii) in respect of which the Board of Directorseach Seller, after receiving advice of the Company’s outside legal counsel reflected in the minutes of the Board of Directors to such effectjointly and severally, determines in good faith will pay any reasonable fees that the Purchaser may incur in enforcing this Agreement.
6.5 Each Seller agrees that no failure to take such action would be inconsistent with its fiduciary duties under all applicable laws;
(e) solicit or arrange delay by the Purchaser in exercising any right, power or provide assistance to privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other person to arrange for the solicitation of, purchases of or offers to sell Company Shares or act in concert or jointly with any other person for the purpose of acquiring Company Shares or the purpose of affecting the control of the Company;
(f) option, sell, assign, dispose of, pledge, encumber, grant a security interest in or otherwise convey any Options or Subject Company Shares or any right or interest therein, or enter into a stock lending arrangement with respect to any Subject Company Shares, or agree to do any of the foregoing except pursuant to the Offer and this Agreement;
(g) vote or cause to be voted any of the Seller’s Subject Company Shares in respect of any proposed action by the Company or its shareholders or affiliates or any other person in a manner which would reasonably be regarded as likely to prevent or delay the successful completion of the Offer;
(h) except as required by applicable laws, prior to the public announcement by the Parent of its intention to cause the Offeror to make the Offer, directly or indirectly, disclose to any person, firm or corporation (other than the Company and the financial and legal advisors of the Company) the existence of the terms and conditions of this Agreement, or the possibility of the Parent or the Offeror making the Offer or any terms or conditions or other information concerning the Offer; or
(i) not take any action to encourage or assist any other person to do any of the prohibited acts referred to in foregoing provisions of this Section 2.1.
2.2 Each Seller hereby agrees that he shall, from the date hereof until the earlier of: (i) the termination of this Agreement pursuant to Article 5; and (ii) the Expiry Time, except in accordance with the terms of this Agreement:
(a) immediately cease any existing solicitations, discussions or negotiations he is engaged in with any person other than the Parent and the Offeror with respect to any potential Acquisition Proposal and request the return or destruction of all confidential information provided in connection therewith; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company from engaging, in such capacity, in discussions or negotiations with a person in response to a bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support Agreement;
(b) as soon as reasonably practicable notify the Parent and the Offeror of: (i) any proposal, inquiry, offer (or any amendment thereto) or request that the Seller receives, or of which the Seller becomes aware, that relates to, or constitutes, or which the Seller reasonably believes could lead to, a bona fide Acquisition Proposal; or (ii) any request that the Seller receives for discussions or negotiations relating to an Acquisition Proposal or any request for non-public information relating to the Company or its Subsidiaries or any of their respective mineral properties by any person or entity that informs the Seller that it is considering making, or has made, an Acquisition Proposal. Such notice to the Parent and the Offeror shall be made, from time to time, orally and in writing and shall include a description of the terms and conditions further exercise of any such proposalright, inquiry, offer (including any amendment thereto) power or request and shall include copies of any such proposal, inquiry, offer or request or any amendment to any of the foregoing; and
(c) exercise the voting rights attaching to the Subject Company Shares and otherwise use the Seller’s commercially reasonable efforts in the Seller’s capacity as a shareholder of the Company to oppose any proposed action by the Company, its shareholders, its Subsidiaries or any other person: (i) in respect of any merger, take-over bid, amalgamation, plan of arrangement, business combination or similar transaction involving the Company or its Subsidiaries, other than the Offer; (ii) which would reasonably be regarded as being directed towards or likely to prevent or delay the take-up of and payment for the Subject Company Shares deposited under the Offer or the successful completion of the Offer, including without limitation any amendment to the articles or by-laws of the Company or its corporate structure; or (iii) which would reasonably be expected to result in a Company Material Adverse Effect. In connection therewith, the Seller hereby appoints the Parent as its attorney in fact (which appointment is unconditional, irrevocable (subject to Article 5), and is coupled with an interest) for and on his behalf to execute a proxy appointing a person designated by the Parent to attend and act on behalf of the Seller at any meeting of shareholders of the Company in respect of any of the matters referred to in this Section 2.2(c); provided that if, pursuant to this power of attorney, the Parent has executed and not revoked a proxy in respect of such a meeting, which proxy has been accepted by the Company, then in such circumstances the Seller shall not be responsible for voting under this Section 2.2(c). The Parent shall advise the Seller upon executing any proxies in respect of the Subject Company Shares held by the Sellerprivilege.
2.3 Each Seller covenants to co-operate with the Parent and the Offeror in making all requisite regulatory filings.
Appears in 1 contract
Samples: Stock Purchase Agreement (Seligman Select Municipal Fund Inc)
Covenants of the Sellers. 2.1 (a) Each Seller hereby agrees that he shall notthat, from during the period commencing on the date hereof and continuing until the earlier of: of (i) the termination of this Agreement pursuant to Article 5; Termination Date and (ii) the Expiry Time, except in accordance with the terms of this Agreement:
(ai) except to the extent permitted by Sections 2.1(d) and 2.2(a)hereunder, it will not take any actionact, directly or indirectly, which may in any way adversely affect in any material respect the success of the Offer or the purchase of any Company Common Shares under the Offer, but, subject to section 9 or unless such a vote would be contrary to other provisions of this agreement, otherwise may continue to vote its Subject Shares as it sees fit;
(bii) acquire direct or indirect beneficial ownership or holding of or control or direction over it will immediately cease and cause to be terminated any additional Company Shares or obtain or enter into existing discussions with any right to do so, with the exception of any Company Shares acquired pursuant to the exercise of Options;
parties (cother than BCE) grant or agree to grant any proxy or other right to the Subject Company Shares, or enter into any voting trust or pooling agreement or arrangement or enter into or subject any of such Subject Company Shares to any other agreement, arrangement, understanding or commitment, formal or informal, with respect to or relating to the voting thereof;any Acquisition Proposal (as defined below); and
(diii) in any manner, it will not directly or indirectly, through any officer, director, employee, representative (including for greater certainty any financial or other advisors) or agent or otherwise (as applicable), make, solicit, assist, initiate, initiate or encourage inquiries from or otherwise facilitate any inquiries, submission of proposals or offers from any person regarding other person, corporation, partnership or other business organization whatsoever (including any of its officers or employees) relating to any liquidation, dissolution, recapitalization, merger, amalgamation or acquisition or purchase of all or a material portion of the assets of, or any equity interest (including Common Shares) in, the Company or any of its subsidiaries or other similar transaction or business combination involving the Company or any of its subsidiaries (any such proposal or offer, an "Acquisition Proposal"), engage or participate in any discussions or negotiations regarding regarding, or furnish to any Acquisition Proposalother person any information with respect to, or otherwise co-operate cooperate in any way with, or assist or participate in, knowingly facilitate or encourage encourage, any effort or attempt by any other person to do or seek to do any of the foregoing; provided, however, that the foregoing shall not prevent a Seller who is a member of the Board of Directors or is a senior officer of the Company (the "Board of Directors") from engaging, responding in such capacity, in discussions or negotiations with his capacity as a person in response director to a any bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement third party to the Company or the Support Agreement and which (i) the Board of Directors determines after the date hereof, providing information to such third party or taking any action referred to in (i) above in his capacity as a director of the Company if, acting in good faith constitutes a Superior Acquisition Proposal on and upon the basis provided for in Section 6.2(a) of the Support Agreement; and (ii) in respect of which the Board of Directors, after receiving advice of the Company’s outside legal counsel reflected in the minutes and financial advisors of the Board of Directors to such effectwhere appropriate, determines in good faith that the failure to take such action do so would be inconsistent with its such Seller's fiduciary duties under all applicable laws;
(e) solicit or arrange or provide assistance to any other person to arrange for the solicitation of, purchases of or offers to sell Company Shares or act in concert or jointly with any other person for the purpose of acquiring Company Shares or the purpose of affecting the control as a member of the Company;
Board of Directors. For greater certainty, each such Seller acknowledges that the proviso to this subsection 4(a) shall not affect such Seller's obligation to tender (fand not withdraw) option, sell, assign, dispose of, pledge, encumber, grant a security interest in or otherwise convey any Options or the Subject Company Shares or any right or interest therein, or enter into a stock lending arrangement with respect to any Subject Company Shares, or agree to do any of the foregoing except Offer pursuant to the Offer terms and conditions of this Agreement;
agreement. If any Seller receives any Acquisition Proposal or any inquiry concerning an Acquisition Proposal (g) vote including an offer or cause invitation to enter into discussions), such Seller will promptly notify the Offeror in writing and provide to the Offeror all relevant details relating thereto, including, without limitation, the price proposed to be voted paid in connection with such Acquisition Proposal and the form of consideration to be paid; provided, however, that no Seller shall be required to disclose to the Offeror any of the Seller’s Subject Company Shares in respect of such Acquisition Proposal or any proposed action by matter relating thereto if such Acquisition Proposal was made to the Company or its shareholders Board of Directors and such Seller was informed of such Acquisition Proposal in his or affiliates her capacity as a member of the Board of Directors and, acting in good faith and upon the advice of the legal and financial advisors of the Board of Directors where appropriate, disclosure thereof by such Seller to the Offeror would be inconsistent with such Seller's fiduciary duties as a member of the Board of Directors.
(b) Each Seller agrees that during the period commencing on the date hereof and continuing until the earlier of (i) the Termination Date and (ii) the Expiry Time:
(i) it will use its reasonable best efforts in its capacity as a shareholder, and, if applicable, as a director subject to his fiduciary duties, to ensure that the business and affairs of the Company and its subsidiaries are operated in the ordinary course in substantially the same manner as conducted prior to the date hereof; and
(ii) it shall not sell, transfer or encumber in any way any Subject Shares or Options owned by it or relinquish or modify its right to vote any Subject Shares or any other person in a manner which would reasonably be regarded as likely to prevent or delay the successful completion securities of the Offer;Company.
(hc) Each Seller agrees that, except as required by applicable lawslaw, such Seller will not prior to the public announcement by the Parent Offeror of its intention to cause the Offeror to make terms of the Offer, directly or indirectly, disclose to any person, firm or corporation (other than the Company and the financial and legal advisors of the Company) the existence of the terms and conditions of this Agreementagreement, or the possibility of the Parent or the Offeror making the Offer being made or any terms or conditions or other information concerning any possible offer to be made for the Offer; orCommon Shares.
(id) not take any action Charles Sirois agrees that, immediately prior to encourage or assist any other person to do any the Public Announcemxxx, xx xxxxx resign as Chief Executive Officer of the prohibited acts referred Company and shall cause the agreement (the "Sirois Agreement") dated March 18, 1992 between the Company and Gestixx Xxxrles Sirois Inc. to in foregoing provisions of this Section 2.1.
2.2 be terminated. Each Seller hereby agrees that he shall, from the date hereof until the earlier of: (i) the termination of this Agreement pursuant covenants and agreex xx xxx xxxxx reasonable best efforts to Article 5; and (ii) the Expiry Time, except in accordance with the terms of this Agreement:
(a) immediately cease any existing solicitations, discussions or negotiations he is engaged in with any person other than the Parent and the Offeror with respect cause Jean C. Monty to any potential Acquisition Proposal and request the return or destruction of all confidential information provided in connection therewith; provided, however, that the foregoing shall not prevent a Seller who is a member be appointed as Chairman of the Board of Directors axx xx xxxx Xxolo Guidi and Christina Gold appointed as co-Chief Executive Officexx xx xxx Xompanx xxxx Xxxxxxx Sirois' resignation.
(e) The Sirois Group covenants and xxxxxx xx xxxe, or cause to be taken, all xxxxxx and to do, or cause to be done, all things necessary to obtain the discharge of any and all Encumbrances (as such term is a senior officer defined below) (including those disclosed to BCE) so that the Subject Shares will be free and clear of any and all Encumbrances upon the acquisition thereof by the Offeror.
(f) Upon the purchase by the Offeror of the Subject Shares, the Sirois Group acknowledges that BCE shall be entitled to designate all xxxxxrs of the Board of Directors currently designated as Teleglobe Directors (as defined in the articles of the Company), and any committees thereof and each Seller shall, upon request by BCE, but subject to applicable law, promptly use its best efforts to (i) expand the Board of Directors, (ii) secure the resignations of such number of directors, (iii) cause the Teleglobe Directors to nominate as directors of the Company from engagingand/or (iv) take all other action (including voting as directors of the Company), in such capacity, in discussions each case as is necessary to enable BCE's designees to be elected or negotiations with a person in response appointed to a bona fide written Acquisition Proposal made by a such person which did not result from a breach of this Agreement or the Support Agreement and which Board of Directors determines in good faith constitutes a Superior Acquisition Proposal on the basis provided for in Section 6.2(a) of the Support Agreement;
(b) as soon as reasonably practicable notify the Parent and the Offeror of: (i) any proposal, inquiry, offer (to cause BCE's designees to be so elected or any amendment thereto) or request that the Seller receives, or of which the Seller becomes aware, that relates to, or constitutes, or which the Seller reasonably believes could lead to, a bona fide Acquisition Proposal; or (ii) any request that the Seller receives for discussions or negotiations relating to an Acquisition Proposal or any request for non-public information relating to the Company or its Subsidiaries or any of their respective mineral properties by any person or entity that informs the Seller that it is considering making, or has made, an Acquisition Proposal. Such notice to the Parent and the Offeror shall be made, from time to time, orally and in writing and shall include a description of the terms and conditions of any such proposal, inquiry, offer (including any amendment thereto) or request and shall include copies of any such proposal, inquiry, offer or request or any amendment to any of the foregoing; and
(c) exercise the voting rights attaching to the Subject Company Shares and otherwise use the Seller’s commercially reasonable efforts in the Seller’s capacity as a shareholder of the Company to oppose any proposed action by the Company, its shareholders, its Subsidiaries or any other person: (i) in respect of any merger, take-over bid, amalgamation, plan of arrangement, business combination or similar transaction involving the Company or its Subsidiaries, other than the Offer; (ii) which would reasonably be regarded as being directed towards or likely to prevent or delay the take-up of and payment for the Subject Company Shares deposited under the Offer or the successful completion of the Offer, including without limitation any amendment to the articles or by-laws of the Company or its corporate structure; or (iii) which would reasonably be expected to result in a Company Material Adverse Effect. In connection therewith, the Seller hereby appoints the Parent as its attorney in fact (which appointment is unconditional, irrevocable (subject to Article 5), and is coupled with an interest) for and on his behalf to execute a proxy appointing a person designated by the Parent to attend and act on behalf of the Seller at any meeting of shareholders of the Company in respect of any of the matters referred to in this Section 2.2(c); provided that if, pursuant to this power of attorney, the Parent has executed and not revoked a proxy in respect of such a meeting, which proxy has been accepted by the Company, then in such circumstances the Seller shall not be responsible for voting under this Section 2.2(c). The Parent shall advise the Seller upon executing any proxies in respect of the Subject Company Shares held by the Sellerappointed.
2.3 Each Seller covenants to co-operate with the Parent and the Offeror in making all requisite regulatory filings.
Appears in 1 contract
Samples: Acquisition Agreement (Bce Inc)
