Common use of Covenants Regarding Non-Solicitation Clause in Contracts

Covenants Regarding Non-Solicitation. (a) Each Party shall, and shall direct and cause its respective officers, directors, employees, representatives, advisors and agents and its subsidiaries and their representatives, advisors, agents, officers, directors and employees to immediately cease and cause to be terminated any solicitation, encouragement, activity, discussion or negotiation with any parties that may be ongoing with respect to an Acquisition Proposal whether or not initiated by such Party, and each Party shall request the return of information regarding such Party and its respective subsidiaries previously provided to such parties and shall request the destruction of all materials including or incorporating any confidential information regarding such Party and its Subsidiaries. Each Party agrees not to release any third party from any confidentiality agreement relating to a potential Acquisition Proposal to which such third party is a party. Each Party further agrees not to release any third party from any standstill or similar agreement or obligation to which such third party is a party or by which such third party is bound (it being understood and agreed that the automatic termination of a standstill provision due to the announcement of the Arrangement or the entry into this Agreement shall not be a violation of this Section 2(a)). (b) Subject to Section 3 of this Schedule H or unless permitted pursuant to Section 2, each Party agrees that it shall not, and shall not authorize or permit any of its officers, directors, employees, representatives, advisors or agents or its subsidiaries, directly or indirectly, to: (i) make, solicit, initiate, entertain, encourage, promote or facilitate, including by way of furnishing information, permitting any visit to its facilities or properties or entering into any form of agreement, arrangement or understanding, any inquiries or the making of any proposals regarding an Acquisition Proposal or that may be reasonably be expected to lead to an Acquisition Proposal; (ii) participate, directly or indirectly, in any discussions or negotiations regarding, or furnish to any person any information or otherwise co-operate with, respond to, assist or participate in any Acquisition Proposal or potential Acquisition Proposal; (iii) remain neutral with respect to, or agree to, approve or recommend any Acquisition Proposal or potential Acquisition Proposal (it being understood that publicly taking no position or a neutral position with respect to an Acquisition Proposal until 15 days following formal announcement of such Acquisition Proposal shall not be considered to be a violation of this paragraph (b)(iii)); (iv) withdraw, modify, qualify or change in a manner adverse to the other Party, or publicly propose to or publicly state that it intends to withdraw, modify, qualify or change in a manner adverse to the other Party the approval, recommendation or declaration of advisability of its Board of Directors of the Arrangement, as the case may be (a “Change in Recommendation”) (it being understood that failing to affirm the approval or recommendation of its Board of Directors of the Arrangement within 15 days after an Acquisition Proposal relating to such Party has been publicly announced and, in circumstances where no Acquisition Proposal has been made, within two business days of being requested to do so by any other Party, shall be considered an adverse modification); (v) enter into any agreement, arrangement or understanding related to any Acquisition Proposal or requiring it to abandon, terminate or fail to consummate the Arrangement, or providing for the payment of any break, termination or other fees or expenses to any person in the event that the other Party or any of its Subsidiaries completes the Arrangement with the first Party or any of its affiliates agreed to prior to any termination of this Agreement; or (vi) make any public announcement or take any other action intended to be inconsistent with the recommendation of its Board of Directors to approve the Arrangement. Notwithstanding the foregoing part of this paragraph (b) and any other provisions of this Agreement: (A) The Board of Directors of a Party (in this section, the “Solicited Party”) may consider, participate in any discussions or negotiations with and provide information to or conduct due diligence on, any person who has delivered a written Acquisition Proposal which was not solicited or encouraged by the Solicited Party after the date of this Agreement and did not otherwise result from a breach of this Section 2 by the Solicited Party and that its Board of Directors determines in good faith, after consultation with its financial advisor and outside legal counsel may reasonably be expected to constitute a Superior Proposal provided, however, that prior to taking any such action the Board of Directors of the Solicited Party determines in good faith, after consultation with outside counsel, that it is necessary to take such action in order to discharge properly its fiduciary duties, and if the Solicited Party provides confidential non-public information to such person, the Solicited Party obtains a confidentiality and standstill agreement from the person making such Acquisition Proposal that is substantively the same as the Confidentiality Agreement and otherwise on terms no more favourable in the aggregate to such person than such confidentiality agreement, including a standstill provision at least as stringent as contained in such confidentiality agreement; provided, however, that it shall not preclude such person from making a Superior Proposal. If a Solicited Party receives a request for material non-public information from a person who proposes to make an Acquisition Proposal and the Board of Directors of the Solicited Party determines in good faith that such Acquisition Proposal, if made, could reasonably be expected to lead to a Superior Proposal and provided that the Solicited Party obtains a confidentiality and standstill agreement from the person making such Acquisition Proposal that is substantively the same as the Confidentiality Agreement between the Parties, and otherwise on terms no more favourable to such person than the Confidentiality Agreement including a standstill provision at least as stringent as contained in such Confidentiality Agreement provided, however, that it shall not preclude such person from making a Superior Proposal, the Solicited Party shall be permitted to provide such person with access to information regarding the Solicited Party; provided that the Solicited Party sends a copy of any such Confidentiality Agreement to the other Party promptly upon its execution and the other Party is provided with a list of the information provided to such person and is immediately provided with access to similar information to which such person was provided. (B) Nothing contained in this Section 2 or elsewhere in this Agreement shall prohibit the Board of Directors of a Party from making a Change in Recommendation or from making any disclosure to its shareholders if, in the good faith judgment of the Board of Directors, after consultation with outside counsel, such action is necessary for the Board of Directors to act in a manner consistent with its fiduciary duties or is otherwise required under applicable Laws, provided that in the case of a proposal to make a Change in Recommendation that does not relate to a Superior Proposal and except as may otherwise be necessary for its Board of Directors to act in a manner consistent with its fiduciary duties, not less than 48 hours before its Board of Directors considers any such proposal such Party shall give the other Party written notice of such proposal and promptly advise the other Party of its Board of Directors’ intention to consider such proposal. The foregoing provisions of this subparagraph (B) shall not relieve Western from its obligation to call and hold the Western Meeting and to hold the vote on the Western Resolution or relieve New Gold from its obligation to call and hold the New Gold Meeting and to hold the vote on the New Gold Resolutions, except in circumstances where this Agreement is terminated in accordance with the terms hereof. (C) Nothing contained in this Section 2 shall prohibit the Board of Directors of a Party from distributing a circular in compliance with applicable Canadian and U.S. securities Laws, as applicable, in response to a take-over bid, provided however that the board of directors of a Party shall not, except as permitted by Section 2 or 3 of this Schedule H, withdraw or modify, or propose to withdraw or modify, its recommendation with respect to the Arrangement or approve or recommend or propose to approve or recommend an Acquisition Proposal. (c) From and after the date of this Agreement, each Party shall promptly (and in any event within 24 hours) notify the other Party, at first orally and then in writing, of any proposals, offers or written inquiries relating to or constituting an Acquisition Proposal, or any request for non-public information relating to such Party or any of its subsidiaries. Such notice shall include a description of the terms and conditions of any proposal, inquiry or offer, the identity of the person making such proposal, inquiry or offer and provide such other details of the proposal, inquiry or offer as the other Party may reasonably request. Each Party shall keep the other Party fully informed on a prompt basis of the status, including any change to the material terms, of any such inquiry, proposal or offer. (d) Each Party shall ensure that its officers, directors and employees and its subsidiaries and their officers, directors, employees and any financial advisors or other advisors or representatives retained by it are aware of the provisions of this Section 2, and it shall be responsible for any breach of this Section 2 by such officers, directors, financial advisors or other advisors or representatives.

Covenants Regarding Non-Solicitation. During the Due Diligence Period, the Parties agree as follows: (a) Each In consideration of the expenses that each of the Parties has incurred and shall incur with respect to the Transaction, neither Party shall, and shall direct and cause its controlled affiliates, officers, directors, employees, representatives, advisors and agents, and its subsidiaries and their respective officers, directors, employees, representatives, advisors and agents and its subsidiaries and their representatives, advisors, agents, officers, directors and employees to immediately cease and cause to be terminated any solicitation, encouragement, activity, discussion or negotiation with any parties person (including any officer, director, employee, agent, shareholder, affiliate, advisor or other representative of a Party) that may be ongoing with respect to an any Acquisition Proposal Proposal, whether or not initiated by such Party, and each such Party shall request the return of information regarding such Party it and its respective subsidiaries previously provided to any such parties person, and shall request the destruction of all materials including or incorporating any confidential information regarding such Party and its Subsidiariesit and/or any subsidiary thereof. Each Party agrees not to release any third party person from any confidentiality agreement relating to a potential Acquisition Proposal to which such third party person is a party. Each Party further agrees not to release any third party person from any standstill or similar agreement or obligation to which such third party person is a party or by which such third party person is bound (it being understood and agreed that the automatic termination of a standstill provision due to the announcement of the Arrangement Transaction or the entry into this Agreement shall not be a violation of this Section 2(a)). (b) Subject Unless permitted pursuant to this Section 3 2 of this Schedule H or unless permitted pursuant to Section 2A, each Party agrees that it shall not, and shall not authorize or permit any of its controlled affiliates, officers, directors, employees, representatives, advisors or agents agents, or those of any of its subsidiaries, directly or indirectly, to: (i) make, solicit, initiate, entertain, encourage, promote or facilitate, including by way of furnishing information, permitting any visit to its facilities or properties properties, or entering into any form of agreement, arrangement or understanding, any inquiries or the making of any proposals regarding an Acquisition Proposal or that may be reasonably be expected to lead to an Acquisition Proposal; (ii) participate, directly or indirectly, in any discussions or negotiations regarding, or furnish to any person any information information, or otherwise co-operate with, respond to, assist or participate in in, any Acquisition Proposal or potential Acquisition Proposal; (iii) remain neutral with respect to, or agree to, approve or recommend any Acquisition Proposal or potential Acquisition Proposal (it being understood that publicly taking no position or a neutral position with respect to an Acquisition Proposal until 15 days following formal announcement of such Acquisition Proposal shall not be considered to be a violation of this paragraph (b)(iii)); (iv) withdraw, modify, qualify or change in a manner adverse to the other Party, or publicly propose to or publicly state that it intends to withdraw, modify, qualify or change in a manner adverse to the other Party the approval, recommendation or declaration of advisability of its Board of Directors of the Arrangement, as the case may be (a “Change in Recommendation”) (it being understood that failing to affirm the approval or recommendation of its Board of Directors of the Arrangement within 15 days after an Acquisition Proposal relating to such Party has been publicly announced and, in circumstances where no Acquisition Proposal has been made, within two business days of being requested to do so by any other Party, shall be considered an adverse modification); (v) enter into any agreement, arrangement or understanding related to any Acquisition Proposal or requiring it to abandon, terminate or fail to consummate the Arrangement, Transaction or providing for the payment of any break, termination or other fees or expenses to any person in the event that the other Party or any of its Subsidiaries completes the Arrangement with the first Party or any of its affiliates agreed to prior to any termination of this AgreementTransaction is completed; or (viv) make any public announcement or take any other action intended to be inconsistent with the its Board’s recommendation of its Board of Directors to approve the Arrangement. Notwithstanding the foregoing part of this paragraph (b) and any other provisions of this Agreement: (A) The Board of Directors of a Party (in this section, the “Solicited Party”) may consider, participate in any discussions or negotiations with and provide information to or conduct due diligence on, any person who has delivered a written Acquisition Proposal which was not solicited or encouraged by the Solicited Party after the date of this Agreement and did not otherwise result from a breach of this Section 2 by the Solicited Party and that its Board of Directors determines in good faith, after consultation with its financial advisor and outside legal counsel may reasonably be expected to constitute a Superior Proposal provided, however, that prior to taking any such action the Board of Directors of the Solicited Party determines in good faith, after consultation with outside counsel, that it is necessary to take such action in order to discharge properly its fiduciary duties, and if the Solicited Party provides confidential non-public information to such person, the Solicited Party obtains a confidentiality and standstill agreement from the person making such Acquisition Proposal that is substantively the same as the Confidentiality Agreement and otherwise on terms no more favourable in the aggregate to such person than such confidentiality agreement, including a standstill provision at least as stringent as contained in such confidentiality agreement; provided, however, that it shall not preclude such person from making a Superior Proposal. If a Solicited Party receives a request for material non-public information from a person who proposes to make an Acquisition Proposal and the Board of Directors of the Solicited Party determines in good faith that such Acquisition Proposal, if made, could reasonably be expected to lead to a Superior Proposal and provided that the Solicited Party obtains a confidentiality and standstill agreement from the person making such Acquisition Proposal that is substantively the same as the Confidentiality Agreement between the Parties, and otherwise on terms no more favourable to such person than the Confidentiality Agreement including a standstill provision at least as stringent as contained in such Confidentiality Agreement provided, however, that it shall not preclude such person from making a Superior Proposal, the Solicited Party shall be permitted to provide such person with access to information regarding the Solicited Party; provided that the Solicited Party sends a copy of any such Confidentiality Agreement to the other Party promptly upon its execution and the other Party is provided with a list of the information provided to such person and is immediately provided with access to similar information to which such person was provided. (B) Nothing contained in this Section 2 or elsewhere in this Agreement shall prohibit the Board of Directors of a Party from making a Change in Recommendation or from making any disclosure to its shareholders if, in the good faith judgment of the Board of Directors, after consultation with outside counsel, such action is necessary for the Board of Directors to act in a manner consistent with its fiduciary duties or is otherwise required under applicable Laws, provided that in the case of a proposal to make a Change in Recommendation that does not relate to a Superior Proposal and except as may otherwise be necessary for its Board of Directors to act in a manner consistent with its fiduciary duties, not less than 48 hours before its Board of Directors considers any such proposal such Party shall give the other Party written notice of such proposal and promptly advise the other Party of its Board of Directors’ intention to consider such proposal. The foregoing provisions of this subparagraph (B) shall not relieve Western from its obligation to call and hold the Western Meeting and to hold the vote on the Western Resolution or relieve New Gold from its obligation to call and hold the New Gold Meeting and to hold the vote on the New Gold Resolutions, except in circumstances where this Agreement is terminated in accordance with the terms hereof. (C) Nothing contained in this Section 2 shall prohibit the Board of Directors of a Party from distributing a circular in compliance with applicable Canadian and U.S. securities Laws, as applicable, in response to a take-over bid, provided however that the board of directors of a Party shall not, except as permitted by Section 2 or 3 of this Schedule H, withdraw or modify, or propose to withdraw or modify, its recommendation with respect to the Arrangement or approve or recommend or propose to approve or recommend an Acquisition ProposalTransaction. (c) From and after the date of this Agreement, each Party shall promptly (and in any event within 24 hours) notify the other Party, at first orally and then in writing, of any proposals, offers or written inquiries relating to or constituting an Acquisition Proposal, or any request for non-public information relating to such Party or any of its subsidiaries. Such notice shall include a description of the terms and conditions of any proposal, inquiry or offer, and the identity of the person making such proposal, inquiry or offer offer, and provide such other details of the proposal, inquiry or offer as the other Party may reasonably request. Each Party shall keep the other Party fully informed on a prompt basis of the status, including any change to the material terms, of any such inquiry, proposal or offer. (d) Each Party shall ensure that its officerscontrolled affiliates, directors and employees and its subsidiaries and their officers, directors, employees employees, advisors and any financial advisors or other advisors or representatives retained by it representatives, and those of its subsidiaries, are aware of the provisions of this Section 2, and it shall be responsible for any breach of this Section 2 by any such officers, directors, financial advisors or other advisors or representativespersons.

Covenants Regarding Non-Solicitation. (a) Each Party shall, and shall direct and cause its respective officers, directors, employees, representatives, advisors and agents and its subsidiaries and their representatives, advisors, agents, officers, directors and employees to immediately cease and cause to be terminated any solicitation, encouragement, activity, discussion or negotiation with any parties that may be ongoing with respect to an Acquisition Proposal whether or not initiated by such Party, and each Party shall request the return of information regarding such Party and its respective subsidiaries previously provided to such parties and shall request the destruction of all materials including or incorporating any confidential information regarding such Party and its Subsidiariessubsidiaries. Each Party agrees not to release any third party from any confidentiality agreement relating to a potential Acquisition Proposal to which such third party is a party. Each Party further agrees not to release any third party from any standstill or similar agreement or obligation to which such third party is a party or by which such third party is bound (it being understood and agreed that the automatic termination of a standstill provision due to the announcement of the Arrangement Transaction or the entry into this Letter Agreement shall not be a violation of this Section 2(a)). (b) Subject to Section 3 of this Schedule H “A” or unless permitted pursuant to Section 2, each Party agrees that it shall not, and shall not authorize or permit any of its officers, directors, employees, representatives, advisors or agents or its subsidiaries, directly or indirectly, to: (i) make, solicit, initiate, entertain, encourage, promote or facilitate, including by way of furnishing information, permitting any visit to its facilities or properties or entering into any form of agreement, arrangement or understanding, any inquiries or the making of any proposals regarding an Acquisition Proposal or that may be reasonably be expected to lead to an Acquisition Proposal; (ii) participate, directly or indirectly, in any discussions or negotiations regarding, or furnish to any person any information or otherwise co-operate cooperate with, respond to, assist or participate in any Acquisition Proposal or potential Acquisition Proposal; (iii) remain neutral with respect to, or agree to, approve or recommend any Acquisition Proposal or potential Acquisition Proposal (it being understood that publicly taking no position or a neutral position with respect to an Acquisition Proposal until 15 days following formal announcement of such Acquisition Proposal shall not be considered to be a violation of this paragraph (b)(iii)); (iv) withdraw, modify, qualify or change in a manner adverse to the any other Party, or publicly propose to or publicly state that it intends to withdraw, modify, qualify or change in a manner adverse to the any other Party the approval, recommendation or declaration of advisability of its Board of Directors of the Arrangement, as the case may be Transaction (a “Change in Recommendation”) (it being understood that failing to affirm the approval or recommendation of its Board of Directors of the Arrangement Transaction within 15 days after an Acquisition Proposal relating to such Party has been publicly announced and, in circumstances where no Acquisition Proposal has been made, within two business days of being requested to do so by any other Party, shall be considered an adverse modification); (v) enter into any agreement, arrangement or understanding related to any Acquisition Proposal or requiring it to abandon, terminate or fail to consummate the Arrangement, Transaction or providing for the payment of any break, termination or other fees or expenses to any person in the event that the any other Party or any of its Subsidiaries subsidiaries completes the Arrangement Transaction or any other transaction with the first other Party or any of its affiliates agreed to prior to any termination of this Letter Agreement; or (vi) make any public announcement or take any other action intended to be inconsistent with the recommendation of its Board of Directors to approve the ArrangementTransaction. Notwithstanding the foregoing part of this paragraph (b) and any other provisions of this Letter Agreement: (A) The Board of Directors of a Party (in this section, the “Solicited Party”) may consider, participate in any discussions or negotiations with and provide information to or conduct due diligence onto, any person who has delivered a written Acquisition Proposal which was not solicited or encouraged by the Solicited Party after the date of this Letter Agreement and did not otherwise result from a breach of this Section 2 by the Solicited Party and that its Board of Directors determines in good faith, after consultation with its financial advisor and outside legal counsel may reasonably be expected to constitute a Superior Proposal provided, however, that prior to taking any such action the Board of Directors of the Solicited Party determines in good faith, after consultation with outside counsel, counsel that it is necessary to take such action in order to discharge properly its fiduciary duties, and if the Solicited Party provides confidential non-public information to such person, the Solicited Party obtains a confidentiality and standstill agreement from the person making such Acquisition Proposal that is substantively the same as the Confidentiality Agreement confidentiality agreement between the Parties hereto, and otherwise on terms no more favourable in the aggregate to such person than such confidentiality agreement, including a standstill provision at least as stringent as contained in such confidentiality agreement; provided, however, that it shall not preclude such person from making a Superior Proposal. If a Solicited Party receives a request for material non-public nonpublic information from a person who proposes to make an Acquisition Proposal and the Board of Directors of the Solicited Party determines in good faith that such Acquisition Proposal, if made, could reasonably be expected to lead to a Superior Proposal and provided that the Solicited Party obtains a confidentiality and standstill agreement from the person making such Acquisition Proposal that is substantively the same as the Confidentiality Agreement confidentiality agreement between the PartiesParties hereto, and otherwise on terms no more favourable to such person than the Confidentiality Agreement such confidentiality agreement including a standstill provision at least as stringent as contained in such Confidentiality Agreement confidentiality agreement provided, however, that it shall not preclude such person from making a Superior Proposal, the Solicited Party shall be permitted to provide such person with access to information regarding the Solicited Party; provided that the Solicited Party sends a copy of any such Confidentiality Agreement confidentiality agreement to the other Party Parties promptly upon its execution and the other Party is Parties are provided with a list of the information provided to such person and is are immediately provided with access to similar information to which such person was provided.; (B) Nothing contained in this Section 2 or elsewhere in this Agreement agreement shall prohibit the Board of Directors of a Party from making a Change in Recommendation or from making any disclosure to its shareholders if, in the good faith judgment of the Board of Directors, after consultation with outside counsel, such action is necessary for the Board of Directors to act in a manner consistent with its fiduciary duties or is otherwise required under applicable Lawslaws, provided that in the case of a proposal to make a Change in Recommendation that does not relate to a Superior Proposal and except as may otherwise be necessary for its Board of Directors to act in a manner consistent with its fiduciary duties, not less than 48 hours before its Board of Directors considers any such proposal such Party shall give the other Party Parties written notice of such proposal and promptly advise the other Party Parties of its Board of Directors’ intention to consider such proposal. The foregoing provisions of this subparagraph (B) shall not relieve Western a Party from its obligation to proceed to call and hold the Western Meeting a special meeting of its shareholders and to hold the vote on the Western Resolution or relieve New Gold from its obligation resolution relating to call and hold the New Gold Meeting and to hold the vote on the New Gold ResolutionsTransaction, except in circumstances where this Letter Agreement is terminated in accordance with the terms hereof. (C) Nothing contained in this Section section 2 shall prohibit the Board of Directors of a Party from distributing a circular in compliance with applicable Canadian and U.S. securities Lawslaws, as applicable, in response to a take-over bid, provided however that the board Board of directors Directors of a Party shall not, except as permitted by Section 2 or 3 of this Schedule H“A”, withdraw or modify, or propose to withdraw or modify, its recommendation with respect to the Arrangement Transaction or approve or recommend or propose to approve or recommend an Acquisition Proposal. (c) From and after the date of this Letter Agreement, each Party shall promptly (and in any event within 24 hours) notify the other PartyParties, at first orally and then in writing, of any proposals, offers or written inquiries relating to or constituting an Acquisition Proposal, or any request for non-public nonpublic information relating to such Party or any of its subsidiaries. Such notice shall include a description of the terms and conditions of any proposal, inquiry or offer, the identity of the person making such proposal, inquiry or offer and provide such other details of the proposal, inquiry or offer as the other Party may reasonably request. Each Party shall keep the other Party Parties fully informed on a prompt basis of the status, including any change to the material terms, of any such inquiry, proposal or offer. (d) Each Party shall ensure that its officers, directors and employees and its subsidiaries and their officers, directors, employees and any financial advisors or other advisors or representatives retained by it are aware of the provisions of this Section 2, and it shall be responsible for any breach of this Section 2 by such officers, directors, financial advisors or other advisors or representatives.