Common use of Primero Covenant Regarding Non-Solicitation Clause in Contracts

Primero Covenant Regarding Non-Solicitation. (a) Primero shall not, directly or indirectly, through any officer, director, employee, representative, advisor or agent of Primero or any of the Primero Subsidiaries, or otherwise: (i) make, solicit, initiate, facilitate, entertain, encourage or promote (including by way of furnishing information, knowingly permitting any visit to facilities or properties of Primero or any of the Primero Subsidiaries or entering into any form of agreement, arrangement or understanding) any inquiries, proposals or offers regarding, constituting or that may reasonably be expected to lead to a Primero Acquisition Proposal or potential Primero 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 effort or attempt to make any Primero Acquisition Proposal or potential Primero Acquisition Proposal, provided that, for greater certainty, Primero may advise any Person making an unsolicited Primero Acquisition Proposal that such Primero Acquisition Proposal does not constitute a Primero Superior Proposal where the Primero Board has so determined; (iii) remain neutral with respect to, or agree to, approve or recommend, or propose publicly to agree to, approve or recommend any Primero Acquisition Proposal or potential Primero Acquisition Proposal (it being understood that publicly taking no position or a neutral position with respect to a Primero Acquisition Proposal until 15 calendar days following formal commencement of such Primero Acquisition Proposal shall not be considered a violation of this subsection 6.1(a)(iii)); (iv) make, or propose publicly to make a Change in Primero Recommendation; (v) accept, enter into, or propose publicly to accept or enter into, any letter of intent, agreement, understanding or arrangement related to any Primero Acquisition Proposal or potential Primero Acquisition Proposal; or (vi) make any public announcement or take any other action inconsistent with, or that could reasonably be likely to be regarded as detracting from, the recommendation of the Primero Board to approve the transactions contemplated herein, provided, however, that, notwithstanding the preceding part of this subsection 6.1(a), but subject to the following provisions of Article 6 of this Agreement, the Primero Board and on the direction of any of the directors of Primero, any officer, employee, representative, agent or advisor of Primero may, prior to the approval of the Arrangement by Primero Shareholders, consider or negotiate any unsolicited Primero Acquisition Proposal that may constitute a Primero Superior Proposal, and the Primero Board may make a Change in Primero Recommendation in respect of a Primero Superior Proposal, or approve or recommend to the Primero Shareholders or enter into an agreement, understanding or arrangement in respect of a Primero Superior Proposal in accordance with the provisions of the following subsections of this Article 6 but in each case only if the Primero Superior Proposal did not result from a breach of this Agreement by Primero and if the Primero Board determines in good faith after consulting with outside counsel (which may include written opinions or advice) that failure to take such action would be inconsistent with the fiduciary duties of such directors under applicable Laws. (b) Primero shall, and shall cause the officers, directors, employees, consultants, representatives and agents of Primero and the Primero Subsidiaries to, immediately terminate and cease any discussions or negotiations with any parties (other than Northgate) with respect to any proposal that constitutes, or may reasonably be expected to constitute, a Primero Acquisition Proposal. Primero shall: (i) discontinue or not allow access to any of its confidential information to any third party; and (ii) immediately request the return or destruction of all information provided to any third party that has entered into a confidentiality agreement with Primero relating to a potential Primero Acquisition Proposal to the extent that such information has not previously been returned or destroyed, and shall use all commercially reasonable efforts to ensure that such requests are honoured. Primero agrees not to: (iii) release any third party from any confidentiality agreement relating to a potential Primero Acquisition Proposal to which such third party is a party except to allow a Person to propose a Primero Acquisition Proposal to the Primero Board; (iv) release any third party from any non-solicitation or standstill agreement or provision to which such third party is a party. Primero also agrees not to amend, modify or waive any such confidentiality, non-solicitation or standstill agreement or provision and undertakes to enforce, or cause the Primero Subsidiaries to enforce such agreements and provisions. (c) Primero shall notify Northgate thereof, at first orally and then, as soon as possible thereafter, in writing, promptly and, in any event, within twenty four (24) hours of the receipt by any director or officer of Primero of any Primero Acquisition Proposal, or any amendment thereto, or any request for non-public information relating to Primero or any of the Primero Subsidiaries in connection with any potential Primero Acquisition Proposal or for access to the properties, books or records of Primero or any of the Primero Subsidiaries by any Person that informs Primero, any of the Primero Subsidiaries that it is considering making, or has made, a Primero Acquisition Proposal. Such written notice shall include the identity of the Person(s) making such proposal and all material terms and conditions of the Primero Acquisition Proposal and provide such other details of the Primero Acquisition Proposal, inquiry or contact as Northgate may reasonably request. (d) If Primero receives a request for material non-public information from a Person who is considering making or has made a written Primero Acquisition Proposal (the existence and content of which have been disclosed to Northgate), and the Primero Board determines that such proposal could, if consummated in accordance with its terms, reasonably be expected to result in a Primero Superior Proposal or does constitute a Primero Superior Proposal, subject to and as contemplated under this section 6.1, then, and only in such case, the Primero Board may, subject to the execution of a confidentiality agreement on terms with respect to confidentiality that are not more favourable to the Person making or considering making the Primero Acquisition Proposal than those set forth in the Confidentiality Agreement, provide such Person with access to information regarding Primero; provided, however, that Primero sends a copy of any such confidentiality agreement to Northgate immediately upon the execution thereof and Northgate is provided with a list of or a copy of the information, if any, provided to such Person that was not previously provided to Northgate and Northgate is immediately provided with access to similar information. (e) Primero shall ensure that its officers, directors, consultants and employees and any financial advisors or other advisors or representatives retained by Primero are aware of the provisions of this section 6.1, and Primero shall be responsible for any breach of this section 6.1 by its financial advisors or other advisors or representatives.