Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero shall not, without the prior written consent of Northgate, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause any of the Primero Subsidiaries to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws: (i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero or any of the Primero Subsidiaries, other than the issue of Primero Shares pursuant to the valid exercise of the Primero Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants; (ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons), sell, lease, encumber or otherwise dispose of, or permit any of the Primero Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effect; (iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero or any of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this Agreement; (iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero Subsidiaries; (v) redeem, purchase or offer to purchase, or permit any of the Primero Subsidiaries to redeem, purchase or offer to purchase, any Primero Shares and, other than pursuant to the Primero Stock Option Plan, any other securities or rights under existing contracts, agreements and commitments; (vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation; (vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity; (viii) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract; (ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above; (x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication; (xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect; (xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business; (xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements; (xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or (xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 3 contracts
Sources: Arrangement Agreement (Primero Mining Corp), Support Agreement (Primero Mining Corp), Support Agreement (Primero Mining Corp)
Certain Actions Prohibited. Other than as disclosed in the Primero ▇▇▇▇▇▇▇ Disclosure LetterMemorandum, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this AgreementArrangement, Primero ▇▇▇▇▇▇▇ shall not, without the prior written consent of Northgate, which consent shall not be unreasonably withheld or delayedEFI, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries to do, any of the following, following except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grant, pledge, lease, dispose of, or encumber or create any Encumbrance on or agree to do soon, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero or any member of the Primero SubsidiariesDenison US Group, other than the issue of Primero Shares pursuant to the valid exercise of the Primero Options and Primero Warrants all as issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Personspersons), sell, lease, encumber lease or otherwise dispose of, or permit any of the Primero Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or assets of the Denison US Group, or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articles, notice of articles Articles or by-laws (or their equivalent equivalent) of Primero or any member of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants Denison US Group as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any member of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesDenison US Group;
(v) redeem, purchase or offer to purchase, or permit purchase any securities issued by any member of the Primero Subsidiaries to redeem, purchase or offer to purchase, any Primero Shares and, other than pursuant to the Primero Stock Option Plan, any other securities or rights under existing contracts, agreements and commitmentsDenison US Group;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, cause or permit any member of the Primero Subsidiaries Denison US Group to acquire or agree to acquire any corporation, partnership corporation or other entity (or material interest therein) or division of any corporation or other entity;
(vii) cause or permit any member of the Denison US Group to return capital to its shareholders or repay any indebtedness for borrowed money before it is due;
(viii) cause or permit any member of the Denison US Group to (A) satisfy or settle any claim, dispute, Liability claim or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and dispute which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero SubsidiariesUS$250,000; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000US$250,000; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire cause or permit any material assets; (B) incur member of the Denison US Group to incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the abovemoney;
(x) initiate cause or permit any material discussionmember of the Denison US Group to enter into or amend any agreements, negotiations arrangements or filings transactions with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communicationrelated entity;
(xi) enter intoexcept as required by IFRS or any other generally accepted accounting principle to which DMHC or White Canyon may be subject or any applicable Law, make any changes to the existing accounting practices of DMHC or White Canyon;
(xii) cause or permit any Primero Subsidiaries member of the Denison US Group to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: than (A) expenditures in the ordinary course expendituresof business; (B) expenditures required by Lawslaw; and (C) expenditures made in connection with transactions the Arrangement as contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;or
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions any member of the Denison US Group (A) fail to prepare and timely file all Tax Returns required to be filed before the Effective Date (taking into account any timely filed extensions) or timely withhold and remit any employment Taxes; (B) file any amended Tax Return; (C) make or change any election with respect to Taxes; or (D) settle or compromise any material Tax liability, enter into any Tax closing agreement, surrender any right to claim a refund of Taxes, waive any statute of limitations regarding any Tax, agree to any extension of time regarding the assessment of any such plans, programs, arrangements Tax deficiency or agreements;
(xiv) take actions or fail to take any other similar action that could reasonably be expected relating to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this AgreementTax.
Appears in 2 contracts
Sources: Arrangement Agreement (Energy Fuels Inc), Arrangement Agreement (Denison Mines Corp.)
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letterby Metallica, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero Metallica shall not, without the prior written consent of Northgate, which consent shall not be unreasonably withheld or delayedNew Gold and Peak, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries to do, any of the following, following except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, or permit any of the Primero Subsidiaries a Metallica Subsidiary to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero or Metallica, any of the Primero Metallica Subsidiaries, other than the issue of Primero Metallica Common Shares pursuant to the valid exercise or conversion, as the case may be, of the Primero Options and Primero Warrants warrants, convertible or exchangeable securities or other rights to acquire Metallica Common Shares, all as issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Personspersons), sell, lease, encumber lease or otherwise dispose of, or permit any of the Primero Metallica Subsidiaries to sell, lease, encumber lease or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articlesNotice of Articles, notice of articles Articles or by-laws (or their equivalent equivalent) of Primero Metallica or any of the Primero Metallica Subsidiaries or any of the terms of the Primero Metallica Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesMetallica;
(v) redeem, purchase or offer to purchase, or permit any of the Primero Metallica Subsidiaries to redeem, purchase or offer to purchase, any Primero Metallica Common Shares and, other than pursuant to the Primero Stock Metallica Share Option Plan, any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (corporation or other entity (or material interest therein) or division of any corporation or other entity, or permit any of the Primero Metallica Subsidiaries to acquire or agree to acquire any corporation, partnership corporation or other entity (or material interest therein) or division of any corporation or other entity;
(viiivii) (A) satisfy or settle any claim, claim or dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and Metallica which are, individually or in the aggregate, in an amount in excess of $500,000 750,000 or which constitutes a claim, dispute, Liability or obligation claim between Primero Metallica and any of the Primero Subsidiaries a Metallica Subsidiary or between Primero Metallica Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000750,000; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; ;
(Dviii) enter into incur, authorize, agree or renew otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any leaseindebtedness for borrowed money, license or other binding obligation of Primero or permit any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Metallica Subsidiaries to engage in incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contractindebtedness for borrowed money;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money except as required by Canadian GAAP or any other material Liability generally accepted accounting principle to which any Metallica Subsidiary may be subject or obligation or issue any debt securities or assumeapplicable Law, guarantee, endorse or otherwise as an accommodation become responsible for, make any changes to the obligations existing accounting practices of any other individual or entity, Metallica or make any loans or advances, except inter-company guarantees and inter-company loans and advancesmaterial tax election inconsistent with past practice; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;or
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Metallica Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: than (A) ordinary course expenditures; (B) expenditures required by Lawslaw; and (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 2 contracts
Sources: Business Combination Agreement (New Gold Inc. /FI), Business Combination Agreement (Metallica Resources Inc)
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, of or as required to give effect to the transactions Arrangement or the Transactions contemplated by this Agreement herein or as permitted under this Agreementrequired by applicable Laws or any Governmental Entity, Primero Vitran shall not (and shall ensure that the Vitran Subsidiaries do not), without the prior written consent of Northgate, which consent shall not be unreasonably withheld or delayedPurchaser, directly or indirectly do or cause any of the Primero Subsidiaries permit to do, occur any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, or permit any of the Primero Subsidiaries a Vitran Subsidiary to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Vitran or any of the Primero Vitran Subsidiaries, other than the issue of Primero up to 557,750 Common Shares pursuant to the valid exercise of the Primero Vitran Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant in the Ordinary Course, or as set out in the Vitran Disclosure Letter, in respect of rights, properties or assets that are not, either individually or in the aggregate, material to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons)Vitran, sell, lease, encumber lease or otherwise dispose of, or permit any of the Primero Vitran Subsidiaries to sell, lease, encumber lease or otherwise dispose of, any material property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articles, notice of articles or by-laws (or their equivalent equivalent) of Primero Vitran or any of the Primero Vitran Subsidiaries or or, except for purposes of and as provided in Section 8(v), any of the terms of the Primero Vitran Options and Primero Warrants or Vitran DSUs as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero Vitran or any of the Primero Vitran Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesCommon Shares;
(v) redeem, purchase or offer to purchase, purchase or permit any of the Primero Vitran Subsidiaries to redeem, purchase or offer to purchase, any Primero Shares and, other than pursuant to the Primero Stock Option Plan, any other securities or rights under existing contracts, agreements and commitmentsCommon Shares;
(vi) neither Primero nor reorganize, amalgamate or merge Vitran or any of the Primero Vitran Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or with any other extraordinary transaction in respect of itself, or adopt any plan of liquidationPerson other than another Vitran Subsidiary;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability material claims or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and disputes which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiariesaggregate material to Vitran; (B) relinquish any contractual rights that which are, individually or in the aggregate, in an amount in excess of $500,000aggregate material to Vitran; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business Ordinary Course and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur except as set out in the Vitran Disclosure Letter, incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, in excess of USD$1,000,000 in the obligations of any other individual or entityaggregate, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the aboveVitran Subsidiaries to incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries Vitran Subsidiary may be subject, subject or any applicable Laws, make any changes to the existing accounting policies practices of Primero or any of the Primero Subsidiaries Vitran or make any material tax election inconsistent with past practice practice;
(xi) adopt a plan of liquidation or resolutions providing for the liquidation or dissolution of Vitran or any of the Vitran Subsidiaries;
(xii) make any capital expenditure or commitment to do so other than in the Ordinary Course or which individually or in the aggregate exceed USD$1,000,000 except in accordance with the approved annual budget of Vitran or as contemplated disclosed in the Vitran Disclosure Letter;
(xiii) make any material Tax election, information schedule, return or designation, settle or compromise any material Tax claim, assessment, reassessment or liability, file any material amended Tax Return, enter into any material agreement with a Governmental Entity with respect to Taxes, surrender any right to claim a material Tax abatement, reduction, deduction, exemption, credit or refund, consent to the extension or waiver of the limitation period applicable to any material Tax matter or materially amend or change any of its methods or reporting income, deductions or accounting for income Tax purposes except as may be required by Law;
(xiv) knowingly take any action or knowingly permit inaction or knowingly enter into any transaction that could reasonably be expected to have the effect of materially reducing or eliminating the amount of the tax cost “bump” pursuant to paragraphs 88(1)(c) and 88(1)(d) of the Tax Act in respect of the securities of any Affiliates of Vitran or any Vitran Subsidiary and other non-depreciable capital property owned by Vitran or any of the Vitran Subsidiaries on the date hereof, upon an amalgamation or winding-up of Vitran or any of the Vitran Subsidiaries (or any of their respective successors);
(xv) make an “investment” (as that term is defined in section 212.3 of the Tax Act) in any corporation that is, or will be prior to the Effective Time, a “foreign affiliate” of Vitran for purposes of the Tax Act;
(xvi) make any bonus or profit sharing distribution or similar payment of any kind, other than pursuant to the employment agreements, retention agreements and transaction incentive agreements disclosed in the Vitran Disclosure Letter;
(xvii) except as required by Laws: (i) adopt, enter into or amend any Employee Plan (other than entering into an employment or consulting agreement in the Ordinary Course with a new non-management employee who was not employed or retained by Vitran or a Vitran Subsidiary on the date of this AgreementAgreement or renewing an existing employment or consulting agreement in the Ordinary Course); (ii) pay any benefit to any director or officer of Vitran or any of the Vitran Subsidiaries or to any Employee that is not required under the terms of any Employee Plan or the employment, retention or transaction incentive agreements in effect on the date of this Agreement as disclosed in the Vitran Disclosure Letter; (iii) grant, accelerate, increase or otherwise amend any payment, award or other benefit, in any material respect, payable to, or for the benefit of, any director or officer of Vitran or any of the Vitran Subsidiaries or to any Employee; (iv) make any material determination under any Employee Plan that is not in the Ordinary Course; or (v) take or propose any action to effect any of the foregoing;
(xviii) enter into or amend any contract with any broker, finder or investment banker; or
(xix) agree or commit to do any of the foregoing.
Appears in 2 contracts
Sources: Arrangement Agreement (Vitran Corp Inc), Arrangement Agreement (TransForce Inc. \ Quebec Canada)
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letterby Peak, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero Peak shall not, without the prior written consent of Northgate, which consent shall not be unreasonably withheld or delayedNew Gold and Metallica, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries to do, any of the following, following except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, or permit any of the Primero Subsidiaries a Peak Subsidiary to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero or Peak, any of the Primero Peak Subsidiaries, other than the issue of Primero Peak Common Shares pursuant to the valid exercise or conversion, as the case may be, of the Primero Options and Primero Warrants warrants, convertible or exchangeable securities or other rights to acquire Peak Common Shares, all as issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Personspersons), sell, lease, encumber lease or otherwise dispose of, or permit any of the Primero Peak Subsidiaries to sell, lease, encumber lease or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articlesNotice of Articles, notice of articles Articles or by-laws (or their equivalent equivalent) of Primero Peak or any of the Primero Peak Subsidiaries or any of the terms of the Primero Peak Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesPeak;
(v) redeem, purchase or offer to purchase, or permit any of the Primero Peak Subsidiaries to redeem, purchase or offer to purchase, any Primero Peak Common Shares and, other than pursuant to the Primero Stock Peak Share Option Plan, any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (corporation or other entity (or material interest therein) or division of any corporation or other entity, or permit any of the Primero Peak Subsidiaries to acquire or agree to acquire any corporation, partnership corporation or other entity (or material interest therein) or division of any corporation or other entity;
(viiivii) (A) satisfy or settle any claim, claim or dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and Peak which are, individually or in the aggregate, in an amount in excess of $500,000 750,000 or which constitutes a claim, dispute, Liability or obligation claim between Primero Peak and any of the Primero Subsidiaries a Peak Subsidiary or between Primero Peak Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000750,000; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; ;
(Dviii) enter into incur, authorize, agree or renew otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any leaseindebtedness for borrowed money, license or other binding obligation of Primero or permit any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Peak Subsidiaries to engage in incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contractindebtedness for borrowed money;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money except as required by Canadian GAAP or any other material Liability generally accepted accounting principle to which any Peak Subsidiary may be subject or obligation or issue any debt securities or assumeapplicable Law, guarantee, endorse or otherwise as an accommodation become responsible for, make any changes to the obligations existing accounting practices of any other individual or entity, Peak or make any loans or advances, except inter-company guarantees and inter-company loans and advancesmaterial tax election inconsistent with past practice; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;or
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Peak Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: than (A) ordinary course expenditures; (B) expenditures required by Lawslaw; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent in connection with the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any modification of the Primero Subsidiaries following the closing Amapari processing facility not in excess of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement$2,000,000.
Appears in 2 contracts
Sources: Business Combination Agreement (New Gold Inc. /FI), Business Combination Agreement (Metallica Resources Inc)
Certain Actions Prohibited. Other than as disclosed in the Primero AuRico Disclosure Letter, or in contemplation of, as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero AuRico shall not, without the prior written consent of Northgate, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause any of the Primero AuRico Subsidiaries to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance (other than an AuRico Permitted Encumbrance) on or agree to do so, or permit any of the Primero AuRico Subsidiaries to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance (other than an AuRico Permitted Encumbrance) on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero AuRico or any of the Primero AuRico Subsidiaries, other than the issue of Primero AuRico Shares pursuant to the valid exercise of the Primero AuRico Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons), sell, lease, encumber or otherwise dispose of, or permit any of the Primero AuRico Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse EffectEffect on AuRico;
(iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero AuRico or any of the Primero AuRico Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero AuRico or any of the Primero AuRico Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero AuRico Shares or the shares of any of the Primero AuRico Subsidiaries;
(v) redeem, purchase or offer to purchase, or permit any of the Primero AuRico Subsidiaries to redeem, purchase or offer to purchase, any Primero AuRico Shares and, other than pursuant to the Primero AuRico Stock Option Plan, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero AuRico nor any of the Primero AuRico Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero AuRico Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero AuRico delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 the AuRico Chairman’s Authorized Expenditure Limit or which constitutes a claim, dispute, Liability or obligation between Primero AuRico and any of the Primero AuRico Subsidiaries or between Primero AuRico Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000the AuRico Chairman’s Authorized Expenditure Limit; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license licence or other binding obligation of Primero AuRico or any of the Primero AuRico Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero AuRico or any of the Primero AuRico Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero AuRico or any of the Primero AuRico Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero AuRico or any of the Primero AuRico Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiariesSubsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budgetthe Budget, not enter into or renew any agreement, contract, lease, license licence or other binding obligation of Primero AuRico or any of the Primero AuRico Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve aggregate payments in excess of $500,000 in the aggregate over the term of the contractcontract in excess of the AuRico Chairman’s Authorized Expenditure Limit, unless otherwise approved by Northgate;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero AuRico Property or the Primero AuRico Mineral Rights) without the prior consent of Northgate AuRico such consent not to be unreasonably withheld, and further agrees to provide Northgate AuRico with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero AuRico Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures, including expenditures required to proceed with the development of and construction of the proposed pipeline; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero AuRico Benefit Plan, the Primero AuRico Stock Option Plan, Primero Warrant Indenture Plan or to any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero AuRico or any of the Primero AuRico Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, IFRS or any other generally accepted accounting principle to which any of the Primero AuRico Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero AuRico or any of the Primero AuRico Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 2 contracts
Sources: Arrangement Agreement (AuRico Gold Inc.), Arrangement Agreement (Northgate Minerals CORP)
Certain Actions Prohibited. Other than as disclosed in the Primero Northgate Disclosure Letter, or in contemplation of, as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero Northgate shall not, without the prior written consent of NorthgatePrimero, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause any of the Primero Northgate Subsidiaries to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of NorthgatePrimero, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Northgate Subsidiaries to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Northgate or any of the Primero Northgate Subsidiaries, other than the issue of Primero Northgate Shares pursuant to the valid exercise of the Primero Northgate Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons), sell, lease, encumber or otherwise dispose of, or permit any of the Primero Northgate Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effect;
(iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero Northgate or any of the Primero Northgate Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero Northgate or any of the Primero Northgate Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Northgate Shares or the shares of any of the Primero Northgate Subsidiaries;
(v) redeem, purchase or offer to purchase, or permit any of the Primero Northgate Subsidiaries to redeem, purchase or offer to purchase, any Primero Northgate Shares and, other than pursuant to the Primero Northgate Stock Option Plan, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero Northgate nor any of the Primero Northgate Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Northgate Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero Northgate delivered to Northgate Primero and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero Northgate and any of the Primero Northgate Subsidiaries or between Primero Northgate Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero Northgate or any of the Primero Northgate Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero Northgate or any of the Primero Northgate Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Primero Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero Northgate or any of the Primero Northgate Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate Primero or any of the Northgate Primero Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero Northgate or any of the Primero Northgate Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate Primero or any of the Northgate subsidiariesPrimero Subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budgetthe Budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero Northgate or any of the Primero Northgate Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate Primero or any of the Northgate Primero Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Northgate Property or the Primero Northgate Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Northgate Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures, including expenditures required to proceed with the development of and construction of the proposed pipeline; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Northgate Benefit Plan, the Primero Northgate Stock Option Plan, Primero Warrant Indenture Plan or to any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to NorthgatePrimero’s interest in the business, property or assets of Primero Northgate or any of the Primero Northgate Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Northgate Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero Northgate or any of the Primero Northgate Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 2 contracts
Sources: Arrangement Agreement (Primero Mining Corp), Support Agreement (Primero Mining Corp)
Certain Actions Prohibited. Other than as disclosed in the Primero Western Disclosure LetterMemorandum, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero Western shall not, and shall cause the Western Subsidiaries not to, without the prior written consent of Northgate, which consent shall not be unreasonably withheld or delayedNew Gold, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries to do, any of the following, following except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, or permit any of the Primero Subsidiaries a Western Subsidiary to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero or Western, any of the Primero Western Subsidiaries, other than the issue of Primero Western Common Shares pursuant to the valid exercise or conversion, as the case may be, of the Primero Options and Primero Warrants warrants, convertible or exchangeable securities or other rights to acquire Western Common Shares, all as issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Personspersons), sell, lease, encumber lease or otherwise dispose of, or permit any of the Primero Western Subsidiaries to sell, lease, encumber lease or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articlesNotice of Articles, notice of articles Articles or by-laws (or their equivalent equivalent) of Primero Western or any of the Primero Western Subsidiaries or any of the terms of the Primero Western Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesWestern;
(v) redeem, purchase or offer to purchase, or permit any of the Primero Western Subsidiaries to redeem, purchase or offer to purchase, any Primero Western Common Shares and, other than pursuant to the Primero Stock Western Share Option Plan, any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (corporation or other entity (or material interest therein) or division of any corporation or other entity, or permit any of the Primero Western Subsidiaries to acquire or agree to acquire any corporation, partnership corporation or other entity (or material interest therein) or division of any corporation or other entity;
(vii) except as provided under the terms of the Western Option Plan, agreements evidencing Western Options and the Plan of Arrangement with respect to a change of control as a result of the Arrangement, whether through its board of directors or otherwise, accelerate the vesting of any unvested Western Options, or otherwise amend, vary or modify the Western Option Plan or any Western Options;
(viii) return capital to its shareholders or repay any indebtedness for borrowed money before it is due;
(ix) (A) satisfy or settle any claim, claim or dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and Western which are, individually or in the aggregate, in an amount in excess of $500,000 750,000 or which constitutes a claim, dispute, Liability or obligation claim between Primero Western and any of the Primero Subsidiaries a Western Subsidiary or between Primero Western Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000750,000; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any material discussionindebtedness for borrowed money, negotiations or filings with permit any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property Western Subsidiaries to incur, authorize, agree or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees otherwise become committed to provide Northgate with immediate notice of guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communicationindebtedness for borrowed money;
(xi) enter into or amend any agreements, arrangements or transactions with any related entity;
(xii) except as required by US GAAP or any other generally accepted accounting principle to which any Western or Western Subsidiary may be subject or any applicable Law, make any changes to the existing accounting practices of Western or make any material tax election inconsistent with past practice; or
(xiii) enter into, or cause any Primero Western Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: than (A) ordinary course expenditures; (B) expenditures required by Lawslaw; and (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 2 contracts
Sources: Business Combination Agreement (Western Goldfields Inc.), Business Combination Agreement (New Gold Inc. /FI)
Certain Actions Prohibited. Other than as disclosed in the Primero EFI Disclosure LetterMemorandum, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this AgreementArrangement, Primero EFI shall not, without the prior written consent of Northgate, which consent shall not be unreasonably withheld or delayed▇▇▇▇▇▇▇, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries to do, any of the following, following except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grant, pledge, lease, dispose of, or encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero or any of the Primero SubsidiariesEFI, other than the issue of Primero EFI Common Shares pursuant to the valid exercise of the Primero Options and Primero Warrants EFI’s options or warrants, all as issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Personspersons), sell, lease, encumber lease or otherwise dispose of, or permit any of the Primero Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articles, notice of articles Articles or by-laws (or their equivalent equivalent) of Primero or any of the Primero Subsidiaries EFI or any of the terms of the Primero Options and Primero Warrants outstanding options as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesEFI;
(v) redeem, purchase or offer to purchase, or permit purchase any of the Primero Subsidiaries to redeem, purchase or offer to purchase, any Primero EFI Common Shares and, other than pursuant to the Primero Stock Option Planany EFI stock option plan, any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(vii) return capital to its shareholders or repay any indebtedness for borrowed money before it is due;
(viii) (A) satisfy or settle any claim, claim or dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and EFI or which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero SubsidiariesUS$100,000; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000US$100,000; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the abovemoney;
(x) initiate enter into or amend any material discussionagreements, negotiations arrangements or filings transactions with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communicationrelated entity;
(xi) except as required by IFRS or any other generally accepted accounting principle to which EFI may be subject or any applicable Law, make any changes to the existing accounting practices of EFI or make any material tax election inconsistent with past practice; or
(xii) enter into, or cause any Primero Subsidiaries to enter into, into new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Lawslaw; and (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 2 contracts
Sources: Arrangement Agreement (Energy Fuels Inc), Arrangement Agreement (Denison Mines Corp.)
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, by Northern Orion or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero Northern Orion shall not, without the prior written consent of Northgate, which consent shall not be unreasonably withheld or delayedYamana, directly or indirectly do authorize, propose, permit or cause agree to any of the Primero Subsidiaries to do, any of the following, following except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, or permit any of the Primero Subsidiaries a Northern Orion Subsidiary to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Northern Orion, any of the Northern Orion Subsidiaries or any of the Primero SubsidiariesNorthern Orion Significant Interest Companies, other than the issue of Primero Northern Orion Common Shares pursuant to the valid exercise of the Primero Northern Orion Options and Primero or the Northern Orion Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Personspersons), and except as contemplated in accordance with Section 4.01(k) above, sell, lease, encumber lease or otherwise dispose of, or permit any of the Primero Northern Orion Subsidiaries or, to the extent Northern Orion has the power to prevent such, any of the Northern Orion Significant Interest Companies, to sell, lease, encumber lease or otherwise dispose of, any material property or assets or enter into any agreement or commitment in respect of any of the foregoing foregoing, except where to do so would not have a Material Adverse Effectas contemplated and in accordance with the Disclosure Memorandum;
(iii) amend or propose to amend the articlesrights, notice privileges and restrictions attaching to the common shares of articles Northern Orion, the Notice of Articles, Articles or by-laws (or their equivalent equivalent) of Primero Northern Orion or any of the Primero Northern Orion Subsidiaries or, to the extent Northern Orion has the power to prevent such, or any of the Northern Orion Significant Interest Companies, or any of the terms of the Primero Northern Orion Options and Primero or Northern Orion Warrants as they exist at the date of this Agreement, or reduce its stated capital;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero Northern Orion, any of the Northern Orion Subsidiaries or, to the extent Northern Orion has the power to prevent such, or any of the Primero SubsidiariesNorthern Orion Significant Interest Companies, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of Northern Orion, any of the Primero SubsidiariesNorthern Orion Subsidiaries or, to the extent Northern Orion has the power to prevent such, or any of the Northern Orion Significant Interest Companies;
(v) redeem, purchase or offer to purchase, or permit any of the Primero Northern Orion Subsidiaries or, to the extent Northern Orion has the power to prevent such, or any of the Northern Orion Significant Interest Companies, to redeem, purchase or offer to purchase, any Primero Northern Orion Common Shares and, other than pursuant to the Primero Stock Northern Orion Share Option Plan, Plan any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor reorganize, amalgamate or merge Northern Orion, any of the Primero Northern Orion Subsidiaries will adopt resolutions or enter into or, to the extent Northern Orion has the power to prevent such, any agreement providing for of the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidationNorthern Orion Significant Interest Companies;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entityentity or material assets, or permit any of the Northern Orion Subsidiaries or to the extent Northern Orion has the power to prevent such, any of the Northern Orion Significant Interest Companies, to acquire or agree to acquire any corporation or other entity (or material interest therein) or division of any corporation or other entity or any material assets;
(viii) other than in accordance with Section 4.01(l) above, enter into any agreements with its directors or officers or their respective affiliates;
(ix) (A) satisfy or settle any claim, claim or dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero Northern Orion delivered to Northgate Yamana and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation claim between Primero Northern Orion and any of the Primero Subsidiaries a Northern Orion Subsidiary or between Primero Northern Orion Subsidiaries; (B) relinquish authorize, recommend or propose any release or relinquishment of any standstill agreement or any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; or (C) enter into or terminate any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; ;
(Dx) enter into incur, authorize, agree or renew otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any leaseindebtedness for borrowed money, license or other binding obligation of Primero or permit any of the Primero Northern Orion Subsidiaries (1) containing (a) any limitation or restriction on or, to the ability of Primero or extent Northern Orion has the power to prevent such, any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiariesNorthern Orion Significant Interest Companies, to solicit customers incur, authorize, agree or employeesotherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or (2) that would reasonably be expected otherwise become committed for any indebtedness for borrowed money other than to materially delay its direct or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not indirect subsidiaries in the ordinary course of business not terminable within thirty and consistent with past practice;
(30xi) days except as required by Canadian GAAP, any other generally accepted accounting principle to which any Northern Orion Subsidiary or any Northern Orion Significant Interest Company, may be subject or any applicable Law, make any changes to the existing accounting practices of Northern Orion or make any material tax election inconsistent with past practice;
(xii) enter into, or cause any Northern Orion Subsidiaries or, to the Effective Date without payment by Northgate or extent Northern Orion has the power to prevent such, any of the Northgate Subsidiaries that involves or would reasonably be expected Northern Orion Significant Interest Companies, to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assumeenter into, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees without prior consultation with and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate Yamana, such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: than (A) ordinary course expendituresexpenditures including budgeted expenditures relating to the development of the Aqua Rica Project as disclosed in writing to Yamana; (B) expenditures required by Lawslaw; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;; or
(xiii) adopt agree to commit or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or do any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreementforegoing.
Appears in 2 contracts
Sources: Business Combination Agreement (Yamana Gold Inc), Business Combination Agreement (Northern Orion Resources Inc)
Certain Actions Prohibited. Other than as disclosed in the Primero New Gold Disclosure LetterMemorandum, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero New Gold shall notnot and shall cause its Subsidiaries not to, without the prior written consent of Northgate, which consent shall not be unreasonably withheld or delayedWestern, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries to do, any of the following, following except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, or permit any of the Primero Subsidiaries a New Gold Material Subsidiary to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero New Gold or any of the Primero New Gold Material Subsidiaries, other than the issue of Primero New Gold Common Shares pursuant to the valid exercise of the Primero New Gold Options and Primero Warrants or pursuant to the exercise or conversion, as the case may be, of warrants, convertible or exchangeable securities or other rights to acquire New Gold Common Shares, all as issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Personspersons), sell, lease, encumber lease or otherwise dispose of, of or permit any of the Primero New Gold Material Subsidiaries to sell, lease, encumber lease or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articlesNotice of Articles, notice of articles Articles or by-laws (or their equivalent equivalent) of Primero New Gold or any of the Primero New Gold Material Subsidiaries or any of the terms of the Primero New Gold Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesNew Gold;
(v) redeem, purchase or offer to purchase, or permit any of the Primero New Gold Material Subsidiaries to redeem, purchase or offer to purchase, any Primero New Gold Common Shares and, other than pursuant to the Primero New Gold Stock Option Plan, any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (corporation or other entity (or material interest therein) or division of any corporation or other entity, or permit any of the Primero New Gold Material Subsidiaries to acquire or agree to acquire any corporation, partnership corporation or other entity (or material interest therein) or division of any corporation or other entity;
(vii) except as provided under the terms of the New Gold Option Plan and the Plan of Arrangement with respect to a change of control as a result of the Arrangement, whether through its board of directors or otherwise, accelerate the vesting of any unvested New Gold Options, or otherwise amend, vary or modify the New Gold Option Plan or any New Gold Options;
(viii) return capital to its shareholders or repay any indebtedness for borrowed money before it is due;
(ix) (A) satisfy or settle any claim, claim or dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and New Gold which are, individually or in the aggregate, in an amount in excess of $500,000 750,000 or which constitutes a claim, dispute, Liability or obligation claim between Primero New Gold and any of the Primero Subsidiaries a New Gold Material Subsidiary or between Primero New Gold Material Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000750,000; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any material discussionindebtedness for borrowed money, negotiations or filings with permit any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property New Gold Material Subsidiaries to incur, authorize, agree or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees otherwise become committed to provide Northgate with immediate notice of guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communicationindebtedness for borrowed money;
(xi) enter into or amend any agreements, arrangements or transactions with any related entity;
(xii) except as required by Canadian GAAP or any other generally accepted accounting principle to which New Gold or any New Gold Material Subsidiary may be subject or any applicable Law, make any changes to the existing accounting practices of New Gold or make any material tax election inconsistent with past practice; or
(xiii) enter into, or cause any Primero Subsidiaries New Gold Material Subsidiary to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Lawslaw; and (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 2 contracts
Sources: Business Combination Agreement (Western Goldfields Inc.), Business Combination Agreement (New Gold Inc. /FI)
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, required or in contemplation of, as required to give effect to the transactions expressly permitted or specifically contemplated by this Agreement or as permitted under this Agreementdisclosed in the Richmont Disclosure Letter, Primero Richmont shall not, without the prior written consent of NorthgateAlamos, which consent shall not be unreasonably withheld withheld, conditioned or delayed, directly or indirectly do or cause or permit any of the Primero Richmont Subsidiaries to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of NorthgateAlamos, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Richmont Subsidiaries to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Richmont or any of the Primero Richmont Subsidiaries, other than the issue of Primero Richmont Shares pursuant to in accordance with the valid exercise of the Primero Options Richmont Options, Richmont RSUs and Primero Warrants Richmont DSUs issued and outstanding on the date hereof in accordance with their terms as of the date hereof, hereof or as required by the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker WarrantsRichmont Rights Plan;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons), sell, lease, encumber or otherwise dispose of, or permit any of the Primero Richmont Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where foregoing, including pursuant to do so would not have a Material Adverse Effectany royalty, streaming or similar arrangement;
(iii) amend or propose to amend the articles, notice of articles or by-laws or other constating documents or their equivalent of Primero Richmont or any of the Primero Richmont Subsidiaries or any of the terms of the Primero Options and Primero Warrants Richmont Shares, Richmont Options, Richmont RSUs or Richmont DSUs as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero Richmont or any of the Primero Richmont Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Richmont Shares or the shares of any of the Primero Richmont Subsidiaries;
(v) redeem, purchase or offer to purchase, or permit any of the Primero Richmont Subsidiaries to redeem, purchase or offer to purchase, any Primero Richmont Shares and, other than pursuant to the Primero Stock Option Richmont LTIP, the Richmont DSU Plan or the Richmont Rights Plan, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor take any action that would result in any amendment, modification, or change of any term of any Financial Indebtedness by Richmont or any of the Primero Richmont Subsidiaries;
(vii) adopt, or permit any of the Richmont Subsidiaries will adopt to adopt, any resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(viiviii) acquire or agree to acquire any corporation, partnership (or other entity Person (or material interest therein) or division of any corporation or other entity, or permit any of the Primero Richmont Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity Person (or material interest therein) or division of any corporation or other entity;
(viiiix) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, for any Liability or obligation between Primero Richmont and any of the Primero Richmont Subsidiaries or between Primero Richmont Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,0005,000,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposesor transactions; (D) enter into or renew any lease, license licence or other binding obligation of Primero Richmont or any of the Primero Richmont Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero Richmont or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Richmont Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero Richmont or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Richmont Subsidiaries, is or would may be conducted, or (c) any limit or restriction on the ability of Primero Richmont or any of the Primero Richmont Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license licence or other binding obligation of Primero Richmont or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Richmont Subsidiaries that involves or would reasonably be expected to involve aggregate payments in excess of $500,000 in the aggregate over the term of the contractcontract in excess of $10,000,000;
(ix) (A) acquire any material assetsassets outside of the ordinary course of business, consistent with past practice; (B) incur any indebtedness for borrowed money or any other material Liability or obligation outside of the ordinary course of business, consistent with past practice, or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entityPerson, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of material value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims rights or documentclaims; (E) enter into or terminate any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, swaps caps, collars, forward sales or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this AgreementAgreement in accordance with the terms thereof; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(xxi) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Richmont Property or the Primero Richmont Mineral Rights) without the prior consent of Northgate Alamos, such consent not to be unreasonably withheld, and Richmont further agrees agrees, subject to applicable Law, to provide Northgate Alamos with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any such written communication;
(xixii) enter into, or cause any Primero Richmont Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities Liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xiixiii) create any new obligations or liabilities Liabilities or modify or in any manner amend any existing obligations and liabilities Liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for ordinary course salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiiixiv) adopt or amend or make any material contribution to the Primero any Richmont Benefit Plan, the Primero Stock Option PlanRichmont LTIP, Primero Warrant Indenture the Richmont DSU Plan or any other bonus, profit sharing, retention, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with applicable Laws or with respect the terms of such plans, programs, arrangements or agreements where the failure to existing provisions so comply would result in a material breach of any such plans, programs, arrangements or agreements;
(xivxv) take actions or fail to take any action that could reasonably be expected to be prejudicial in any material respect to NorthgateAlamos’s interest in the business, property or assets of Primero Richmont or any Richmont Subsidiaries following the completion of the Arrangement;
(xvi) acquire any securities of Alamos or any option, rights or entitlements to acquire any securities of Alamos or enter into any commitment or agreement to do any of the Primero Subsidiaries following the closing of the Arrangementforegoing; or
(xvxvii) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, IFRS or any applicable Laws, make any changes to the existing accounting policies of Primero Richmont or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this AgreementRichmont Subsidiaries.
Appears in 2 contracts
Sources: Arrangement Agreement (Richmont Mines Inc), Arrangement Agreement (Alamos Gold Inc)
Certain Actions Prohibited. Other than Except as disclosed in otherwise contemplated hereunder or under the Primero Disclosure LetterPlan of Arrangement, or in contemplation of, as required to give effect to the transactions contemplated by this Agreement hereunder or as permitted under this Agreementthereunder, Primero Silvermex shall not, and shall cause the Silvermex Material Subsidiaries not to, without the prior written consent of NorthgateGenco, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause any of the Primero Subsidiaries permit to do, occur any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, or permit any of the Primero Subsidiaries a Silvermex Material Subsidiary to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Silvermex or any of the Primero Silvermex Material Subsidiaries, other than the issue of Primero the Aurcana Property Shares, the San ▇▇▇▇▇▇▇ Property Shares and the Silvermex Common Shares pursuant to the valid exercise of the Primero Silvermex Options and Primero Silvermex Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) amend or propose to amend the articles or by-laws (or their equivalent) of Silvermex or any of the Silvermex Material Subsidiaries or any of the terms of the Silvermex Options and the Silvermex Warrants as they exist at the date of this Agreement;
(iii) split, combine or reclassify any of the shares of Silvermex or any of the Silvermex Material Subsidiaries, or declare, set aside or pay any dividend or other distribution or special bonuses payable in cash, securities, property or otherwise with respect to the shares of Silvermex, or undertake any other capital reorganization;
(iv) redeem, purchase or offer to purchase, or permit any of the Silvermex Material Subsidiaries to redeem, purchase or offer to purchase, any Silvermex Common Shares and, other than pursuant to the Silvermex Share Option Plan, any options or obligations or rights under existing contracts, agreements and commitments commitments;
(v) adopt any resolution or enter into any agreement providing for an amalgamation, merger, consolidation, reorganization, liquidation, dissolution or other extraordinary transaction, or adopt any plan of liquidation or reorganize, amalgamate or merger with any other person;
(vi) other than pursuant to, and only to the extent such of, the due exercise by any third party of any rights have been exercised under existing contracts, agreements and commitments with Silvermex or initiated by other Persons)any Silvermex Material Subsidiary, sell, pledge, lease, encumber or otherwise dispose of, or permit any of the Primero Silvermex Material Subsidiaries to sell, lease, encumber lease or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iiivii) amend grant or propose enter into any agreement, written or verbal, with respect to amend any royalty or similar arrangement, or issue any instrument having the articlessame economic effect as a royalty, notice of articles or by-laws or their equivalent of Primero or any in respect of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this AgreementSilvermex Properties;
(ivviii) reduce its stated capitalexcept in the ordinary and regular course of business (up to an amount not to exceed, in the aggregate, $100,000) or splitas required by applicable Laws, combine enter into or reclassify modify in any of the shares material respect any contract, agreement, licence, franchise, Environmental Approval, lease transaction, commitment or other securities of Primero right or any of the Primero Subsidiaries, obligation or declare, set aside or pay any dividend or other distribution payable arrangement in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesSilvermex Properties;
(vix) redeemauthorize, purchase recommend, propose or offer agree to purchase, any release or permit relinquishment of any standstill agreement or of the Primero Subsidiaries to redeem, purchase or offer to purchase, any Primero Shares and, other than pursuant to the Primero Stock Option Plan, any other securities or rights under existing contracts, agreements and commitmentsmaterial contractual right;
(vix) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for agreements with its directors or officers or their respective affiliates or associates other than in the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect ordinary and regular course of itself, or adopt any plan of liquidationbusiness;
(viixi) acquire or agree to acquire any corporation, partnership (corporation or other entity (or material interest therein) or division of any corporation or other entity, or permit any of the Primero Silvermex Material Subsidiaries to acquire or agree to acquire any corporation, partnership corporation or other entity (or material interest therein) or division of any corporation or other entity;
(viiixii) abandon or fail to diligently pursue any application to renew any existing material licence, permit, order, claim, authorization, consent, approval (Aincluding Environmental Approvals) or registration related to any of the Silvermex Properties;
(xiii) satisfy or settle any claimclaim or dispute which is, dispute, Liability individually or obligation that is not in the ordinary course aggregate with any other such claims or disputes, in an amount in excess of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate $100,000 or which constitutes a claim between Silvermex and a Silvermex Material Subsidiary or between Silvermex Material Subsidiaries; relinquish any contractual rights which are, individually or in the aggregate, in an amount in excess of $500,000 100,000; or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business consistent with past practice and in any case not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ixxiv) (A) acquire any material assets; (B) incur incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money, or permit any of the Silvermex Material Subsidiaries to incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money;
(xv) except as required by Canadian GAAP, any other material Liability generally accepted accounting principle to which any Silvermex Material Subsidiary may be subject or obligation or issue any debt securities or assumeapplicable Law, guarantee, endorse or otherwise as an accommodation become responsible for, make any changes to the obligations existing accounting practices of any other individual or entity, Silvermex or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements tax election inconsistent with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the abovepast practice;
(xxvi) initiate any material discussion, negotiations or filings except in accordance with any Governmental Entity regarding any matter (including with respect budgets furnished to Genco prior to the Arrangement date hereof, make or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter intoincur, or cause any Primero Silvermex Material Subsidiaries to enter intomake or incur, new material commitments any capital expenditures or expenses of a capital expenditure any nature or incur any new material contingent liabilities kind of over $100,000 other than: than (and without duplication) (A) ordinary course expenditures; (B) expenditures required by Lawsapplicable Law; and (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xiixvii) create any new obligations or liabilities or modify or engage in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of businessextraordinary transaction;
(xiiixviii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably reasonable be expected to interfere with or be prejudicial to Northgate’s interest in inconsistent with the business, property or assets of Primero or any completion of the Primero Subsidiaries following Arrangement or the closing of the Arrangementother transactions contemplated in this Agreement; or
(xvxix) except as required by Canadian GAAPauthorize, propose, permit or any other generally accepted accounting principle agree to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreementforegoing.
Appears in 2 contracts
Sources: Arrangement Agreement (Silvermex Resources Inc), Arrangement Agreement (Silvermex Resources Inc)
Certain Actions Prohibited. Other than as disclosed in the Primero Northgate Disclosure Letter, or in contemplation of, as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero Northgate shall not, without the prior written consent of NorthgateAuRico, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause any of the Primero Northgate Subsidiaries to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of NorthgateAuRico, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance (other than a Northgate Permitted Encumbrance) on or agree to do so, or permit any of the Primero Northgate Subsidiaries to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance (other than a Northgate Permitted Encumbrance) on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Northgate or any of the Primero Northgate Subsidiaries, other than the issue of Primero Northgate Shares pursuant to (i) the valid exercise of the Primero Northgate Options and Primero Warrants Northgate Convertible Notes issued and outstanding on the date hereof in accordance with their terms as of the date hereof, hereof or (ii) the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker WarrantsNorthgate ESPP;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons), sell, lease, encumber or otherwise dispose of, or permit any of the Primero Northgate Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse EffectEffect on Northgate;
(iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero Northgate or any of the Primero Northgate Subsidiaries or any of the terms of the Primero Northgate Options and Primero Warrants Northgate Convertible Notes as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero Northgate or any of the Primero Northgate Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Northgate Shares or the shares of any of the Primero Northgate Subsidiaries;
(v) redeem, purchase or offer to purchase, or permit any of the Primero Northgate Subsidiaries to redeem, purchase or offer to purchase, any Primero Northgate Shares and, other than pursuant to the Primero Northgate Stock Option Plan, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero Northgate nor any of the Primero Northgate Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Northgate Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated interim financial statements of Primero delivered to Northgate for the six months ended June 30, 2011 and which are, individually or in the aggregate, in an amount in excess of $500,000 the Northgate Chairman’s Authorized Expenditure Limit or which constitutes a claim, dispute, Liability or obligation between Primero Northgate and any of the Primero Northgate Subsidiaries or between Primero Northgate Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000the Northgate Chairman’s Authorized Expenditure Limit; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license licence or other binding obligation of Primero Northgate or any of the Primero Northgate Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero Northgate or any of the Primero Northgate Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate AuRico Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero Northgate or any of the Primero Northgate Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate AuRico or any of the Northgate AuRico Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero Northgate or any of the Primero Northgate Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate AuRico or any of the Northgate subsidiariesAuRico Subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or for in PrimeroNorthgate’s budget, not enter into or renew any agreement, contract, lease, license licence or other binding obligation of Primero Northgate or any of the Primero Northgate Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate AuRico or any of the Northgate AuRico Subsidiaries that involves or would reasonably be expected to involve aggregate payments in excess of $500,000 in the aggregate over the term of the contractcontract in excess of the Northgate Chairman’s Authorized Expenditure Limit, unless otherwise approved by AuRico;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Northgate Property or the Primero Northgate Mineral Rights) without the prior consent of Northgate AuRico such consent not to be unreasonably withheld, and further agrees to provide Northgate AuRico with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Northgate Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Northgate Benefit Plan, the Primero Northgate Stock Option Plan, Primero Warrant Northgate Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to NorthgateAuRico’s interest in the business, property or assets of Primero Northgate or any of the Primero Northgate Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, IFRS, or any other generally accepted accounting principle to which any of the Primero Northgate Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero Northgate or any of the Primero Northgate Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 2 contracts
Sources: Arrangement Agreement (AuRico Gold Inc.), Arrangement Agreement (Northgate Minerals CORP)
Certain Actions Prohibited. Other than Except as disclosed contemplated hereunder, under the Plan of Arrangement or as described in the Primero Genco Disclosure Letter, or in contemplation of, as required to give effect to the transactions contemplated hereunder or thereunder or otherwise as required by this Agreement or as permitted under this Agreementapplicable Law, Primero Genco shall not, and shall cause the Genco Material Subsidiaries not to, without the prior written consent of NorthgateSilvermex, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause any of the Primero Subsidiaries permit to do, occur any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, or permit any of the Primero Subsidiaries a Genco Material Subsidiary to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Genco or any of the Primero Genco Material Subsidiaries, other than the issue of Primero Genco Common Shares pursuant to the valid exercise of the Primero Genco Options and Primero Genco Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) amend or propose to amend the articles or by-laws (or their equivalent) of Genco or any of the Genco Material Subsidiaries or any of the terms of the Genco Options and the Genco Warrants as they exist at the date of this Agreement;
(iii) split, combine or reclassify any of the shares of Genco or any of the Genco Material Subsidiaries, or declare, set aside or pay any dividend or other distribution or special bonuses payable in cash, securities, property or otherwise with respect to the shares of Genco, or undertake any other capital reorganization;
(iv) redeem, purchase or offer to purchase, or permit any of the Genco Material Subsidiaries to redeem, purchase or offer to purchase, any Genco Common Shares and, other than pursuant to the Genco Share Option Plan, any options or obligations or rights under existing contracts, agreements and commitments commitments;
(v) adopt any resolution or enter into any agreement providing for an amalgamation, merger, consolidation, reorganization, liquidation, dissolution or other extraordinary transaction, or adopt any plan of liquidation or reorganize, amalgamate or merger with any other person;
(vi) other than pursuant to, and only to the extent such of, the due exercise by any third party of any rights have been exercised under existing contracts, agreements and commitments with Genco or initiated by other Persons)any Genco Material Subsidiary, sell, pledge, lease, encumber or otherwise dispose of, or permit any of the Primero Genco Material Subsidiaries to sell, lease, encumber lease or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iiivii) amend grant or propose enter into any agreement, written or verbal, with respect to amend any royalty or similar arrangement, or issue any instrument having the articlessame economic effect as a royalty, notice of articles or by-laws or their equivalent of Primero or any in respect of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this AgreementGenco Properties;
(ivviii) reduce its stated capitalexcept in the ordinary and regular course of business (up to an amount not to exceed, in the aggregate, $100,000) or splitas required by applicable Laws, combine enter into or reclassify modify in any of the shares material respect any contract, agreement, licence, franchise, Environmental Approval, lease transaction, commitment or other securities of Primero right or any of the Primero Subsidiaries, obligation or declare, set aside or pay any dividend or other distribution payable arrangement in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesGenco Properties;
(vix) redeemauthorize, purchase recommend, propose or offer agree to purchase, any release or permit relinquishment of any standstill agreement or of the Primero Subsidiaries to redeem, purchase or offer to purchase, any Primero Shares and, other than pursuant to the Primero Stock Option Plan, any other securities or rights under existing contracts, agreements and commitmentsmaterial contractual right;
(vix) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for agreements with its directors or officers or their respective affiliates or associates other than in the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect ordinary and regular course of itself, or adopt any plan of liquidationbusiness;
(viixi) acquire or agree to acquire any corporation, partnership (corporation or other entity (or material interest therein) or division of any corporation or other entity, or permit any of the Primero Genco Material Subsidiaries to acquire or agree to acquire any corporation, partnership corporation or other entity (or material interest therein) or division of any corporation or other entity;
(viiixii) abandon or fail to diligently pursue any application to renew any existing material licence, permit, order, claim, authorization, consent, approval (Aincluding Environmental Approvals) or registration related to any of the Genco Properties;
(xiii) satisfy or settle any claimclaim or dispute which is, dispute, Liability individually or obligation that is not in the ordinary course aggregate with any other such claims or disputes, in an amount in excess of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate $100,000 or which constitutes a claim between Genco and a Genco Material Subsidiary or between Genco Material Subsidiaries; relinquish any contractual rights which are, individually or in the aggregate, in an amount in excess of $500,000 100,000; or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business consistent with past practice and in any case not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ixxiv) (A) acquire any material assets; (B) incur incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money, or permit any of the Genco Material Subsidiaries to incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money;
(xv) except in connection with this transaction and except as required by Canadian GAAP, any other material Liability generally accepted accounting principle to which any Genco Material Subsidiary may be subject or obligation or issue any debt securities or assumeapplicable Law, guarantee, endorse or otherwise as an accommodation become responsible for, make any changes to the obligations existing accounting practices of any other individual or entity, Genco or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements tax election inconsistent with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the abovepast practice;
(xxvi) initiate any material discussion, negotiations or filings except in accordance with any Governmental Entity regarding any matter (including with respect budgets furnished to Silvermex prior to the Arrangement date hereof, make or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter intoincur, or cause any Primero Genco Material Subsidiaries to enter intomake or incur, new material commitments any capital expenditures or expenses of a capital expenditure any nature or incur any new material contingent liabilities kind of over $100,000 other than: than (and without duplication) (A) ordinary course expenditures; (B) expenditures required by Lawsapplicable Law; and (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xiixvii) create any new obligations or liabilities or modify or engage in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of businessextraordinary transaction;
(xiiixviii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably reasonable be expected to interfere with or be prejudicial to Northgate’s interest in inconsistent with the business, property or assets of Primero or any completion of the Primero Subsidiaries following Arrangement or the closing of the Arrangementother transactions contemplated in this Agreement; or
(xvxix) except as required by Canadian GAAPauthorize, propose, permit or any other generally accepted accounting principle agree to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreementforegoing.
Appears in 2 contracts
Sources: Arrangement Agreement (Silvermex Resources Inc), Arrangement Agreement (Silvermex Resources Inc)
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as otherwise permitted under pursuant to this Agreement, Primero Madison shall not, without the prior written consent of NorthgateBMG, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries following prior to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable LawsClosing Date:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grant, pledge, lease, dispose of, or encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero or any of the Primero SubsidiariesMadison, other than the issue of Primero Madison Common Shares pursuant to the valid exercise of the Primero Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or upon the exercise of the Primero Broker Madison Warrants;
(ii) incur or commit to incur any debt, except in the ordinary and regular course of business, or to finance its working capital requirements, or as otherwise contemplated herein in connection with the transactions contemplated by this Agreement;
(iii) declare or pay any dividends or distribute any of its properties or assets to shareholders with respect to the Madison Common Shares;
(iv) enter into Material Contracts, other than in the ordinary and regular course of business, except in connection with the Share Exchange or as otherwise contemplated herein;
(v) alter or amend its notice of articles or articles, other than in connection with the consolidation of Madison Common Shares on a four for one basis or as may be required in connection with the transactions contemplated herein;
(vi) engage in any business enterprise or other activity different from that carried on or contemplated as of the date hereof;
(vii) other than pursuant to obligations the terms of property acquisitions or rights under existing contracts, agreements in the ordinary and commitments (to the extent such rights have been exercised or initiated by other Persons)regular course of business, sell, pledge, lease, dispose of, grant any interest in, encumber or otherwise agree to sell, pledge, lease, dispose of, grant any interest in or permit encumber any of the Primero Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or its assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse EffectEffect on Madison;
(iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero or any of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero Subsidiaries;
(vviii) redeem, purchase or offer to purchase, or permit purchase any of the Primero Subsidiaries to redeemMadison Common Shares, purchase Madison Options, or offer to purchaseother securities; or
(ix) acquire, directly or indirectly, any Primero Shares andassets, including but not limited to securities of other than pursuant to the Primero Stock Option Plancompanies, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 1 contract
Sources: Share Exchange Agreement (Battle Mountain Gold Inc.)
Certain Actions Prohibited. Other than as disclosed in the Primero Bema Disclosure Letter, Letter or in contemplation of, of or as required to give effect to the transactions contemplated by this herein or in the B2Gold Purchase and Sale Agreement or as permitted under this the Joint Venture Agreement, Primero Bema shall not (and shall ensure that the Bema Subsidiaries do not), without the prior written consent of Northgate, Kinross which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause any of the Primero Subsidiaries permit to do, occur any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, contribute capital, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, contribute capital, dispose of, or encumber or create any Encumbrance on, or permit any of the Primero Subsidiaries a Bema Subsidiary to issue, sell, grant, pledge, lease, contribute capital, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, contribute capital, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Bema or any of the Primero SubsidiariesBema Subsidiaries or any of the shares representing Bema’s interest in the Bema Significant Interest Companies, other than the issue of Primero Bema Common Shares pursuant to the valid exercise of the Primero Bema Options and Primero Warrants or the Bema Warrants, or upon conversion of the Bema Convertible Debentures, issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than in the ordinary and regular course of business consistent with past practice, in respect of rights, properties or assets that are not, either individually or in the aggregate, material to Bema, or pursuant to obligations or rights under existing contracts, agreements and commitments disclosed in the Bema Disclosure Letter (to the extent such rights have been exercised or initiated by other Personspersons), sell, lease, encumber lease or otherwise dispose of, or permit any of the Primero Bema Subsidiaries to sell, lease, encumber lease or otherwise dispose of, any material property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articles, notice of articles or by-laws (or their equivalent equivalent) of Primero Bema or any of the Primero Bema Subsidiaries or any of the terms of the Primero Options and Primero Bema Options, the Bema Warrants or the Bema Convertible Debentures, in each case as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero Bema or any of the Primero Bema Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesBema;
(v) redeem, purchase or offer to purchase, purchase or permit any of the Primero Bema Subsidiaries to redeem, purchase or offer to purchase, any Primero Bema Common Shares and, other than pursuant to the Primero Stock Bema Share Option Plan, any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor reorganize, amalgamate or merge Bema or any of the Primero Bema Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or with any other extraordinary transaction in respect of itself, or adopt any plan of liquidationperson other than another Bema Subsidiary;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability claims or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and disputes which are, individually or in the aggregate, in an amount in excess of $500,000 5,000,000 or which constitutes constitute a claim, dispute, Liability or obligation claim between Primero Bema and any of the Primero Subsidiaries a Bema Subsidiary or between Primero Bema Subsidiaries; (B) relinquish any contractual rights that which are, individually or in the aggregate, in an amount in excess of $500,0005,000,000; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or any other material Liability or obligation or issue any debt securities or assumeincur, guaranteeauthorize, endorse agree or otherwise as an accommodation become responsible for, committed for any indebtedness in excess of $20,000,000 in the obligations of any other individual or entityaggregate, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the aboveBema Subsidiaries to incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries Bema Group Company may be subject, subject or any applicable Laws, make any changes to the existing accounting policies practices of Primero or any of the Primero Subsidiaries Bema or make any material tax election inconsistent with past practice other than as contemplated in this Agreementpractice; or
(xi) agree or commit to do any of the foregoing.
Appears in 1 contract
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or Except in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero Kobex shall not, without the prior written consent of Northgate, IMA which consent shall not be unreasonably withheld or delayedwithheld, directly or indirectly do or cause any of the Primero Kobex Subsidiaries to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, grant, pledge, lease, dispose of, or encumber or create any Encumbrance on, or permit any of the Primero Subsidiaries a Kobex Subsidiary to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, grant, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Kobex or any of the Primero Kobex Subsidiaries, other than the issue of Primero Kobex Common Shares pursuant to the valid exercise of the Primero Kobex Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons), sell, lease, encumber or otherwise dispose of, or permit any of the Primero Kobex Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effect;
(iii) amend or propose to amend the articlesNotice of Articles, notice of articles Articles or by-laws or their equivalent of Primero Kobex or any of the Primero Kobex Subsidiaries or any of the terms of the Primero Kobex Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero Kobex or any of the Primero Kobex Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Kobex Common Shares or the shares of any of the Primero Kobex Subsidiaries;
(v) redeem, purchase or offer to purchase, or permit any of the Primero Kobex Subsidiaries to redeem, purchase or offer to purchase, any Primero Kobex Common Shares and, other than pursuant to the Primero Kobex Stock Option Plan, any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership partnership, business corporation (or other entity or material interest therein) or division of any corporation or other entity, or make any investment or permit any of the Primero Kobex Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entityentity or make any investment;
(viii) (A) satisfy or settle any claim, claim or dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate Kobex and which are, individually or in the aggregate, in an amount in excess of $500,000 50,000 or which constitutes a claim, dispute, Liability or obligation claim between Primero Kobex and any of the Primero Subsidiaries a Kobex Subsidiary or between Primero Kobex Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,00050,000; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; , (B) incur any indebtedness for borrowed money or any other material Liability liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; advances (C) authorize, recommend or propose any release or relinquishment of any material contractual right; , (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorizationlicense, lease, contract, production sharing agreement, government land concession or other material legal rightsdocument, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; , or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, into new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: than (A) ordinary course expenditures; , (B) expenditures required by Laws; law, (C) expenditures made in connection with transactions contemplated in this Agreement; , and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xiixi) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiiixii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, insurance, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws the law or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xivxiii) take actions or fail to take any action that could reasonably be expected to be prejudicial to NorthgateIMA’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries Kobex and its subsidiaries following the closing of the Kobex Arrangement; or
(xvxiv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries Kobex Subsidiary may be subject, subject or any applicable LawsLaw, make any changes to the existing accounting policies practices of Primero or any of the Primero Subsidiaries Kobex or make any material tax election inconsistent with past practice other than as contemplated in this Agreementpractice.
Appears in 1 contract
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as otherwise permitted under pursuant to this Agreement, Primero Bruin Point shall not, without the prior written consent of NorthgateKaroo, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries following prior to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:Effective Date:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grant, pledge, lease, dispose of, or encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero or any of the Primero SubsidiariesBruin Point, other than the issue of Primero Bruin Point Common Shares pursuant to the valid exercise Bruin Point Financing, and the issue of the Primero Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or Bruin Point Common Shares upon the exercise of the Primero Broker Bruin Point Finder Warrants;
(ii) incur or commit to incur in any debt, except in the ordinary and regular course of business, or to finance its working capital requirements, or as otherwise contemplated in connection with the transactions contemplated in this Agreement;
(iii) declare or pay any dividends or distribute any of its property or assets to shareholders with respect to the Bruin Point Common Shares;
(iv) enter into any material contracts, other than in the ordinary and regular course of business, in connection with the Amalgamation or as otherwise contemplated herein;
(v) alter or amend its notice of articles or articles, other than as may be required in connection with the transactions contemplated herein;
(vi) engage in any business enterprise or other activity different from that carried on or contemplated as of the date hereof;
(vii) other than pursuant to obligations the terms of property acquisitions or rights under existing contracts, agreements in the ordinary and commitments (to the extent such rights have been exercised or initiated by other Persons)regular course of business, sell, pledge, lease, dispose of, grant any interest in, encumber or otherwise agree to sell, pledge, lease, dispose of, grant any interest in or permit encumber any of the Primero Subsidiaries to sellits assets, lease, encumber or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse EffectEffect on Bruin Point;
(iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero or any of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero Subsidiaries;
(vviii) redeem, purchase or offer to purchase, or permit purchase any of the Primero Subsidiaries to redeemBruin Point Common Shares, purchase Bruin Point Options or offer to purchaseother securities; or
(ix) acquire, directly or indirectly, any Primero Shares andassets, including but not limited to securities of other than pursuant to the Primero Stock Option Plancompanies, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 1 contract
Sources: Amalgamation Agreement
Certain Actions Prohibited. Other than as required or expressly permitted or specifically contemplated by this Agreement, the Plan of Arrangement or the New Argonaut Contribution Agreement, required by applicable Laws or disclosed in the Primero Argonaut Disclosure LetterLetter or the Argonaut Budget, or in contemplation of, as required consented to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero shall not, without the prior written consent of NorthgateAlamos, which consent shall not be unreasonably withheld withheld, conditioned or delayed, Argonaut shall, and shall cause each of the Argonaut Subsidiaries to, conduct its business in the ordinary course, consistent with past practice in accordance with applicable Laws, and Argonaut shall not and shall cause the Argonaut Subsidiaries not to, other than as required or expressly permitted or specifically contemplated by this Agreement or the Plan of Arrangement, required by applicable Laws or disclosed in the Argonaut Disclosure Letter or the Argonaut Budget (other than with respect to the payment of bonuses, which shall be governed by subsection 4.1(h)(xvi)), or with the prior written consent of Alamos, which consent shall not be unreasonably withheld, conditioned or delayed, directly or indirectly do or cause any of the Primero Subsidiaries to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of NorthgateAlamos, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, sell or grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, sell or grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Argonaut or any of the Primero Argonaut Subsidiaries, other than pursuant to the Private Placement and the issue of Primero Argonaut Shares pursuant to in accordance with the valid exercise of Argonaut Options, the Primero Options Argonaut DSUs, the Argonaut PSUs, the Argonaut RSUs and Primero Warrants the Argonaut Debentures issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contractscontracts or as disclosed in the Argonaut Disclosure Letter, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons), sell, lease, encumber or otherwise dispose of, or permit any of the Primero Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where including pursuant to do so would not have a Material Adverse Effectany royalty, streaming or similar arrangement;
(iii) amend or propose to amend the articles, notice of articles or by-laws of Argonaut or their equivalent of Primero or any of the Primero Argonaut Subsidiaries or any of the terms of the Primero Options Argonaut Shares, Argonaut Options, Argonaut DSUs, Argonaut PSUs, and Primero Warrants Argonaut RSUs (except as set forth herein, including pursuant to the Plan of Arrangement) as they exist at the date of this Agreement;
(iv) reduce its the stated capital, or split, combine or reclassify any of the shares or other securities of Primero Argonaut or any the Argonaut Subsidiaries (except as set forth herein, including pursuant to the Plan of the Primero SubsidiariesArrangement), or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesArgonaut Shares;
(v) redeem, purchase or offer to purchase, or permit purchase any of the Primero Subsidiaries to redeem, purchase or offer to purchase, any Primero Argonaut Shares and, other than pursuant to the Primero Stock Option Argonaut Incentive Plan, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor except as disclosed in the Argonaut Disclosure Letter, take any action that would result in any material amendment, modification or change of any term of any Financial Indebtedness by Argonaut or the Primero Subsidiaries will Argonaut Subsidiaries;
(vii) adopt any resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(viiviii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity Person (or material interest therein) or division of any corporation or other entity;
(viiiix) except as disclosed in the Argonaut Disclosure Letter (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiariesbusiness; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000rights; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposesinstruments; (D) enter into or renew any lease, license licence or other binding obligation of Primero Argonaut or any of the Primero Argonaut Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero Argonaut or any of the Primero Argonaut Subsidiaries or, following completion consummation of the transactions contemplated hereby, the ability of Alamos or any of the Northgate Alamos Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero Argonaut or any of the Primero Argonaut Subsidiaries or or, following consummation of the transactions contemplated hereby, all or any portion of the business Northgate of Alamos or any of the Northgate Subsidiaries, Alamos Subsidiaries is or would be conducted, or (c) any limit or restriction on the ability of Primero Argonaut or any of the Primero Argonaut Subsidiaries or, following completion consummation of the transactions contemplated hereby, the ability of Northgate Alamos or any of the Northgate subsidiaries, Alamos Subsidiaries to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license licence or other binding obligation of Primero Argonaut or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Argonaut Subsidiaries that involves or would reasonably be expected to involve aggregate payments in excess of $500,000 in the aggregate over the term of the contractcontract in excess of $250,000;
(ixx) except as disclosed in the Argonaut Disclosure Letter, (A) acquire any material assetsassets outside the ordinary course of business consistent with past practices; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entityPerson, or make any loans or advances, except inter-company guarantees and inter-company loans and advances, in each case other than expense reimbursements in the ordinary course of business; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document, other than as set forth in the Argonaut Disclosure Letter; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(xxi) except as disclosed in the Argonaut Disclosure Letter, initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero any Argonaut Property or the Primero Argonaut Mineral Rights) without the prior consent of Northgate Alamos such consent not to be unreasonably withheld, delayed or conditioned and further agrees agrees, subject to applicable Law, to provide Northgate Alamos with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xixii) enter into, or cause any Primero Subsidiaries to enter into, into new material commitments of a capital expenditure nature or incur any new material contingent liabilities Liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xiixiii) create any new material obligations or liabilities Liabilities or modify or in any material manner amend any existing obligations and liabilities Liabilities, to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than (A) for ordinary course salary, wages, bonuses and incentive compensation under its or their existing bonus compensation arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities liabilities, (B) as is necessary to comply with applicable Laws or the terms of any existing Argonaut Benefit Plan or Contract, or (C) arising in the ordinary and usual course of business
(xiv) create any new expenditures made in connection with transactions contemplated in this Agreement that involve or would reasonably be expected to involve aggregate payments less than $500,000;
(xiiixv) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other new bonus, profit sharing, retention, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements plan for the benefit of employees, or materially amend any current Argonaut Benefit Plan, including the Argonaut Incentive Plan, except in the ordinary course of business consistent with past practice or except as is necessary to comply with applicable Laws or with respect to existing provisions the terms of any such plans, programs, arrangements or agreementsArgonaut Benefit Plan;
(xivxvi) pay any bonus amounts to any director, officer or employee, including the annual 2023 bonus (the payment of which has been deferred), provided that such bonus amounts shall be paid at the Effective Time;
(xvii) take actions or fail to take any action that could reasonably be expected to be prejudicial in any material respect to Northgate’s Alamos’ interest in the business, property or assets of Primero Argonaut or the Argonaut Subsidiaries following the completion of the Arrangement;
(xviii) acquire any securities of Alamos or any option, rights or entitlements to acquire any securities of Alamos or enter into any commitment or agreement to do any of the Primero Subsidiaries following the closing of the Arrangement; orforegoing;
(xvxix) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, IFRS or any applicable Laws, make any changes to the existing accounting policies of Primero Argonaut or any of the Primero Argonaut Subsidiaries or make any material tax Tax election inconsistent with past practice other than as contemplated in this Agreement; or
(xx) (i) transfer, sell, assign, gift or dispose of all or any portion of any of the assets, properties or rights of Argonaut or any of the Argonaut Subsidiaries or any interest therein to New Argonaut, or (ii) grant to New Argonaut any right, option or privilege to acquire all or any portion of any of the assets, properties or rights of Argonaut or Prodigy Gold Inc. or any interest therein.
Appears in 1 contract
Certain Actions Prohibited. Other than as previously disclosed in the Primero Disclosure Letterby PTQ to Iberian, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this AgreementTransaction, Primero during the Interim Period, PTQ shall not, without the prior written consent of NorthgateIberian, which such consent shall not to be unreasonably withheld or delayed, directly or indirectly do or cause any of the Primero Subsidiaries permit to do, occur any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, or permit any of PTQ Newco or the Primero PTQ Subsidiaries to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares ofof PTQ, Primero PTQ Newco or any of the Primero PTQ Subsidiaries, including without limitation, the PTQ Common Shares, other than the issue of Primero PTQ Common Shares pursuant to the valid exercise of the Primero Options stock options and Primero Warrants warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons), sell, lease, encumber lease or otherwise dispose of, or permit any of PTQ Newco or the Primero PTQ Subsidiaries to sell, lease, encumber lease or otherwise dispose of, any material property or assets or enter into any agreement or commitment in respect of any of the foregoing foregoing;
(iii) enter into, renew or modify in any respect any material contract, agreement, lease, commitment or arrangement to which PTQ or the PTQ Subsidiaries is a party or by which either of them is bound, except insofar as may be necessary to permit or provide for the completion of the Transaction or where to do so would not have a Material Adverse Effect;
(iiiiv) amend or propose to amend the articles, notice of articles Articles or by-laws (or their equivalent equivalent) of Primero PTQ, PTQ Newco or any of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this AgreementPTQ Subsidiaries;
(ivv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero PTQ Common Shares or any of the Primero shares of PTQ Newco or the PTQ Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares shares of PTQ, PTQ Newco or the shares of any of the Primero PTQ Subsidiaries;
; (vvi) redeem, purchase or offer to purchase, or permit purchase any of the Primero Subsidiaries to redeem, purchase or offer to purchase, any Primero Shares and, other than pursuant to the Primero Stock Option Plan, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidationPTQ Common Shares;
(vii) reorganize, amalgamate or merge PTQ, PTQ Newco or the PTQ Subsidiaries with any other Person;
(viii) acquire or agree to acquire any corporation, partnership (corporation or other entity (or material interest therein) or division of any corporation or other entity, or permit any of PTQ Newco or the Primero PTQ Subsidiaries to acquire or agree to acquire any corporation, partnership corporation or other entity (or material interest therein) or division of any corporation or other entity;
(viiiix) (A) satisfy or settle any claim, claim or dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate PTQ Financial Statements and which are, individually or in the aggregate, in an amount in excess of less than $500,000 100,000 or which constitutes a claimclaim between PTQ, dispute, Liability or obligation between Primero PTQ Newco and any of the Primero Subsidiaries or between Primero PTQ Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000100,000; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the aboveinstruments;
(x) initiate incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any material discussionindebtedness for borrowed money, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement permit PTQ Newco or the transactions contemplated by this Agreement PTQ Subsidiaries to incur, authorize, agree or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees otherwise become committed to provide Northgate with immediate notice of guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;indebtedness for borrowed money; or
(xi) enter into, or cause any Primero PTQ Newco or the PTQ Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: than (A) ordinary course expendituresexpenditures (including work programs on the PTQ Properties); (B) expenditures required by Lawslaw; and (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this AgreementTransaction.
Appears in 1 contract
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero including the Spinco Financing, Mountain Lake shall not, without the prior written consent of Northgate, which consent shall not be unreasonably withheld or delayedMarathon Gold, directly or indirectly do or cause any of the Primero Subsidiaries permit to do, occur any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Subsidiaries Spinco to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Mountain Lake or any of the Primero SubsidiariesSpinco, other than the issue of Primero Mountain Lake Common Shares pursuant to the valid exercise of the Primero Mountain Lake Options and Primero the Mountain Lake Warrants issued and outstanding on the date hereof of this Agreement in accordance with their terms as of the date hereof, of this Agreement and the conversion issuance of 50,000 Mountain Lake Common Shares as part of an option payment due by Primero or August 2012 under the Primero Major Shareholder terms of the Primero Convertible Note, or option agreement relating to the exercise of the Primero Broker Warrants;Little River Property.
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other PersonsPersons and only if such rights have been disclosed in Subsection 4.1(q)(ii) of the Mountain Lake Disclosure Letter), sell, lease, encumber lease or otherwise dispose of, or permit any of the Primero Subsidiaries Spinco to sell, lease, encumber lease or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articles, its articles or notice of articles or by-laws (or their equivalent the equivalent) of Primero Mountain Lake or any of the Primero Subsidiaries or Spinco or, except as contemplated herein, any of the terms of the Primero Mountain Lake Options and Primero or the outstanding Mountain Lake Warrants as they exist existed at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero Mountain Lake or any of the Primero Subsidiaries, shares of Spinco or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of Mountain Lake or any shares of the Primero SubsidiariesSpinco;
(v) redeem, purchase or offer to purchase, or permit any of the Primero Subsidiaries Spinco to redeem, purchase or offer to purchase, any Primero Mountain Lake Common Shares and, other than pursuant to the Primero Stock Mountain Lake Option Plan, any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero Mountain Lake nor any of the Primero Subsidiaries Spinco will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity (or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries Spinco to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability claim or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and dispute which areis, individually or in the aggregate, in an amount in excess of $500,000 20,000, except such as have been included in Mountain Lake Financial Statements delivered to Marathon Gold or which constitutes a claim, dispute, Liability or obligation claim between Primero Mountain Lake and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contractSpinco;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 1 contract
Sources: Arrangement Agreement
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, or as required to give effect to to, the transactions contemplated by this Agreement Agreement, or as otherwise permitted under pursuant to this Agreement, Primero Telferscot shall not, without the prior written consent of NorthgateCanntab, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries following prior to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable LawsEffective Date:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on on, or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grant, pledge, lease, dispose of, or encumber or create any Encumbrance on or agree to do soon, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero or any of the Primero SubsidiariesTelferscot, other than the issue Telferscot Shares issuable in connection with the Amalgamation and the Spin Out;
(ii) incur or commit to incur any debt, except in the ordinary and regular course of Primero Shares pursuant business, to finance its working capital requirements or as otherwise contemplated in connection with the transactions contemplated in this Agreement;
(iii) declare or pay any dividends or distribute any of its properties or assets to the valid exercise Telferscot Shareholders other than in respect of the Primero Options Spin Out;
(iv) enter into any Material Contracts without the consent of Canntab, other than in connection with the Transaction, the Spin Out or as otherwise contemplated herein;
(v) alter or amend its articles or by-laws, other than as may be required in connection with the transactions contemplated herein, including the Telferscot Consolidation and Primero Warrants issued and outstanding the Telferscot Change of Name as well as the Spin Out;
(vi) engage in any business enterprise or other activity different from that carried on the date hereof in accordance with their terms or contemplated by it as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(iivii) other than pursuant to obligations in the ordinary and regular course of business or rights under existing contracts, agreements in connection with the Spin Out and commitments the transactions contemplated in Section (to the extent such rights have been exercised or initiated by other Personse), sell, pledge, lease, encumber or otherwise dispose of, grant any interest in, encumber, or permit any of the Primero Subsidiaries agree to sell, pledge, lease, encumber or otherwise dispose of, grant any property interest in or assets or enter into any agreement or commitment in respect of encumber, any of the foregoing its assets, except where to do so would not have a Material Adverse EffectEffect on Telferscot;
(iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero or any of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero Subsidiaries;
(vviii) redeem, purchase or offer to purchase, or permit purchase any of the Primero Subsidiaries Telferscot Shares or any of its other securities except as required to redeemeffect the Spin Out; or
(ix) acquire, purchase directly or offer to purchaseindirectly, any Primero Shares andassets, including but not limited to securities of other than pursuant to the Primero Stock Option Plancompanies, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreementpart of the Spin Out.
Appears in 1 contract
Sources: Amalgamation Agreement
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement Agreement, as contemplated by the CRTCE Acquisition or as otherwise permitted under pursuant to this Agreement, Primero AltMed shall not, without the prior written consent of NorthgateChampignon, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries following prior to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable LawsEffective Date:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grant, pledge, lease, dispose of, or encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares ofof AltMed;
(ii) incur or commit to incur in any debt, Primero except in the ordinary and regular course of business, or to finance its working capital requirements, or as otherwise contemplated in connection with the transactions contemplated in this Agreement;
(iii) declare or pay any dividends or distribute any of its property or assets to shareholders with respect to the Primero SubsidiariesAltMed Shares;
(iv) enter into any material contracts, other than in the issue ordinary and regular course of Primero Shares pursuant to business, in connection with the valid exercise Amalgamation or as otherwise contemplated herein;
(v) alter or amend its notice of articles or articles, other than as may be required in connection with the Primero Options and Primero Warrants issued and outstanding transactions contemplated herein;
(vi) engage in any business enterprise or other activity different from that carried on the date hereof in accordance with their terms or contemplated as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(iivii) other than pursuant to obligations the terms of property acquisitions or rights under existing contracts, agreements in the ordinary and commitments (to the extent such rights have been exercised or initiated by other Persons)regular course of business, sell, pledge, lease, dispose of, grant any interest in, encumber or otherwise agree to sell, pledge, lease, dispose of, grant any interest in or permit encumber any of the Primero Subsidiaries to sellits assets, lease, encumber or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse EffectEffect on AltMed;
(iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero or any of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero Subsidiaries;
(vviii) redeem, purchase or offer to purchase, or permit purchase any of the Primero Subsidiaries to redeemAltMed Shares or other securities; or
(ix) acquire, purchase directly or offer to purchaseindirectly, any Primero Shares andassets, including but not limited to securities of other than pursuant to the Primero Stock Option Plancompanies, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 1 contract
Sources: Amalgamation Agreement
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero shall not, without the prior written consent of Northgate, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause any of the Primero Subsidiaries to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero or any of the Primero Subsidiaries, other than the issue of Primero Shares pursuant to the valid exercise of the Primero Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons), sell, lease, encumber or otherwise dispose of, or permit any of the Primero Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effect;
(iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero or any of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero Subsidiaries;
(v) redeem, purchase or offer to purchase, or permit any of the Primero Subsidiaries to redeem, purchase or offer to purchase, any Primero Shares and, other than pursuant to the Primero Stock Option Plan, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 1 contract
Certain Actions Prohibited. Other Until the completion of the Arrangement, and other than as disclosed by Purchaser in the Primero Purchaser Disclosure LetterLetter or except as contemplated herein, or in contemplation of, as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero shall notneither Purchaser nor any Purchaser Subsidiary shall, without the prior written consent of NorthgateFCGI, which consent shall not be unreasonably withheld withheld, conditioned or delayed, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries to do, any of the following, following except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) directly or indirectly, issue, sell, grant, pledge, lease, lease or dispose of, encumber or create any Encumbrance on of or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grant, pledge, leaselease or dispose of any Purchaser Shares or equity securities of the Purchaser or securities convertible into Purchaser Shares or equity securities, dispose ofexcept in connection with: (1) the exchange, encumber or create any Encumbrance on or agree to do sotransfer, any shares or other securities ofconversion, or any options, warrants, calls, conversion privileges or exercise of rights of any kind existing outstanding securities or existing commitments to acquire any shares of, Primero issue securities; (2) the grant of securities or any the exercise or settlement of the Primero Subsidiaries, other than the issue of Primero Shares securities granted pursuant to the valid exercise Purchaser's equity incentive plans; or (3) any bona fide transaction with an arm's length third party whereby the Purchaser directly or indirectly acquires shares or assets of the Primero Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrantsa business;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons), sell, lease, encumber or otherwise dispose of, or permit any of the Primero Subsidiaries to sell, lease, encumber lease or otherwise dispose of, any property or assets having a value greater than $100,000 or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) grant or enter into any agreement, written or verbal, with respect to any royalty or similar arrangement or issue any instrument having the same economic effect as a royalty on the Purchaser Properties;
(iv) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero or any of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants Purchaser as they exist at the date of this Arrangement Agreement;
(ivv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesPurchaser;
(vvi) redeem, purchase or offer to purchase, any Purchaser Shares, Purchaser Options or permit any of the Primero Subsidiaries to redeem, purchase or offer to purchase, any Primero Shares and, other than pursuant to the Primero Stock Option Plan, any other securities obligations or rights under existing contracts, agreements and commitments;
(vivii) neither Primero nor any of the Primero Subsidiaries will adopt resolutions reorganize, amalgamate or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidationmerge Purchaser;
(viiviii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entityentity having a value greater than $100,000;
(viiiix) (A) satisfy settle, pay, discharge, satisfy, compromise, waive, assign or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregaterelease, in an amount greater than $50,000, (i) any action, claim or proceeding brought by or against Purchaser, or (ii) any action, claim or proceeding brought by or against any present, former or purported holder of its securities in excess connection with the transactions contemplated by this Arrangement Agreement or the Plan of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero SubsidiariesArrangement; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,00050,000; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money;
(xi) except as required by IFRS or any applicable Law, make any changes to the existing accounting practices of Purchaser;
(xii) approve any plan, program or budget for Purchaser or amend or revise any existing plan, program or budget for Purchaser including, but not limited to, the current budget, the social and permitting program or the drill program, that exceeds 10% of the Purchaser's total budget on a consolidated basis;
(xiii) except for expenditures under Purchaser's current program, incur or commit to incur any expenditure for an amount in excess of $300,000;
(xiv) enter into new commitments of a capital expenditure nature or incur any new contingent liabilities other than (A) ordinary course expenditures; (B) expenditures required by Law; and (C) expenditures made in connection with transactions contemplated in this Arrangement Agreement;
(xv) Purchaser shall not initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate FCGI such consent not to be unreasonably withheld, and further agrees to provide Northgate FCGI with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xiixvi) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ ' fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiiixvii) adopt or amend or make any contribution to the Primero Benefit Purchaser Equity Incentive Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, insurance, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xivxviii) take actions make or amend any material Tax election, materially change any method of Tax accounting or settle or compromise any Tax liability of Purchaser;
(xix) fail to take duly and timely file any action that could reasonably be expected material Tax Returns required to be prejudicial to Northgate’s interest filed by it on or after the date hereof, and all such Tax Returns will be true, complete and correct in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangementall material respects; or
(xvxx) except as required fail to timely withhold, collect, remit and pay any material Taxes which are to be withheld, collected, remitted or paid by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes it to the existing accounting policies of Primero or extent due and payable except for any of Taxes contested in good faith pursuant to applicable Laws that are not required to be paid under applicable Laws and for which sufficient provision is made in the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreementrelevant financial statements.
Appears in 1 contract
Certain Actions Prohibited. Other than as disclosed specifically contemplated in Section 4.1(e) of the Brio Disclosure Letter or in the Primero Brio Budget included in Section 4.1(e) of the Brio Disclosure LetterLetter (provided, however, that in each such case, Brio has the financial ability to pay for such obligations or commitments through existing cash, cash from operations or available drawdowns under existing credit facilities), or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero Brio shall not, without the prior written consent of Northgate, which Leagold (any consent shall not request to be unreasonably withheld or delayedconsidered and responded to expeditiously), directly or indirectly do or cause any of the Primero Subsidiaries permit to do, occur any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance Lien on or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grantpledge, lease, dispose of, or encumber or create any Lien on, or permit any subsidiary to issue, sell, pledge, lease, dispose of, encumber or create any Encumbrance Lien on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Lien on, any shares or other securities of, or any optionsBrio Options, Brio DSUs, Brio Restricted Stock, Brio RSUs, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Brio or any of the Primero Subsidiariesits subsidiaries, other than the issue of Primero Brio Shares pursuant to the valid exercise of Brio Options, Brio DSUs, Brio Restricted Stock or Brio RSUs or pursuant to the Primero Options and Primero Warrants exercise or conversion, as the case may be, of exchangeable securities or other rights to acquire Brio Shares, all as issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Personspersons), encumber, create any Lien on, sell, leaselease or otherwise dispose of, encumber or permit its subsidiaries to encumber, create any Lien on, sell, lease or otherwise dispose of, or permit any of the Primero Subsidiaries its subsidiaries to sell, lease, encumber lease or otherwise dispose of, any property (including the Brio Properties) or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articles, notice of articles or by-laws (or their equivalent equivalent) of Primero Brio or any of the Primero Subsidiaries its subsidiaries or any of the terms of the Primero Options and Primero Warrants Brio Options, Brio DSUs, Brio Restricted Stock or Brio RSUs as they exist at the date of this Agreement, including any vesting terms contemplated therein;
(iv) reduce its stated capital, or split, combine consolidate or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesBrio;
(v) redeem, purchase or offer to purchase, or permit any of the Primero Subsidiaries its subsidiaries to redeem, purchase or offer to purchase, any Primero Brio Shares and, other than pursuant to the Primero Stock Option Brio Incentive Plan, any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (corporation or other entity (or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries its subsidiaries to acquire or agree to acquire any corporation, partnership corporation or other entity (or material interest therein) or division of any corporation or other entity;
(viiivii) (A) satisfy or settle any claim, dispute, Liability claim or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, dispute individually or in the aggregate, in an amount in excess of $500,000 1,000,000, except such as have been included in the consolidated financial statements of Brio, or which constitutes a claim, dispute, Liability or obligation claim between Primero Brio and any of the Primero Subsidiaries a subsidiary or between Primero Subsidiariessubsidiaries of Brio; or (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,0001,000,000; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; ;
(Dviii) enter into incur, authorize, agree or renew otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any leaseindebtedness for borrowed money, license or other binding obligation of Primero or permit any of the Primero Subsidiaries (1) containing (a) its subsidiaries to incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contractindebtedness for borrowed money;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, IFRS or any other generally accepted accounting principle to which Brio or any of the Primero Subsidiaries its subsidiaries may be subject, subject or any applicable LawsLaw, make any changes to the existing accounting policies practices of Primero or any of the Primero Subsidiaries Brio or make any material tax election inconsistent with past practice practice;
(x) enter into, or cause any of its subsidiaries to enter into any new commitments or renew or modify in any material respect, any Brio Material Contracts, agreements, leases or arrangements to which Brio, or its subsidiaries, is a party or to incur any new contingent liabilities, except where to do so:
(A) would be in the ordinary course of business;
(B) would not have a Material Adverse Effect; and
(C) are included in the Brio Budget and for which Brio has the financial ability to pay through existing cash, cash from operations or available drawdowns under existing credit facilities;
(xi) take any action, or allow any of its subsidiaries to take any action, that would, as at the Effective Time, result in Brio’s and its subsidiaries’, on a consolidated basis:
(A) overall cash balance being less than [redacted - confidential threshold]; and
(B) overall payables (excluding any accounts relating to expenses incurred in connection with the transactions contemplated herein and related matters and any tax payables and “legal provisions”, as that term is used in the interim financial statements for the period ended September 30, 2017) being more than [redacted - confidential threshold] and for greater certainty, any income tax related payables and value added tax payables shall be incurred in the normal course of business consistent with past practice; or
(xii) enter into, or cause any of its subsidiaries to enter into, any material interest rate, currency or equity swaps, ▇▇▇▇▇▇, derivatives, contracts or other than as contemplated in this Agreementsimilar financial instruments, provided that consent of Leagold shall not be unreasonably withheld.
Appears in 1 contract
Sources: Arrangement Agreement
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letterby Glamis, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero Glamis shall not, without the prior written consent of Northgate, which consent shall not be unreasonably withheld or delayedGoldcorp, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries to do, any of the following, following except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, or permit any of the Primero Subsidiaries a Glamis Subsidiary to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Glamis, any of the Glamis Subsidiaries or any of the Primero SubsidiariesGlamis Significant Interest Companies, other than the issue of Primero Glamis Common Shares pursuant to the valid exercise of the Primero Glamis Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Personspersons), sell, lease, encumber lease or otherwise dispose of, or permit any of the Primero Glamis Subsidiaries or any of the Glamis Significant Interest Companies to sell, lease, encumber lease or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articlesNotice of Articles, notice of articles Articles or by-laws (or their equivalent equivalent) of Primero Glamis or any of the Primero Glamis Subsidiaries or any of the Glamis Significant Interest Companies or any of the terms of the Primero Glamis Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero Glamis, any of the Glamis Subsidiaries or any of the Primero SubsidiariesGlamis Significant Interest Companies, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of Glamis, any of the Primero SubsidiariesGlamis Subsidiaries or any of the Glamis Significant Interest Companies;
(v) redeem, purchase or offer to purchase, or permit any of the Primero Glamis Subsidiaries or any of the Glamis Significant Interest Companies to redeem, purchase or offer to purchase, any Primero Glamis Common Shares and, other than pursuant to the Primero Stock Glamis Share Option Plan, any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor reorganize, amalgamate or merge Glamis, any of the Primero Glamis Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any of the Glamis Significant Interest Companies with any other extraordinary transaction in respect of itself, or adopt any plan of liquidationperson;
(vii) acquire or agree to acquire any corporation, partnership (corporation or other entity (or material interest therein) or division of any corporation or other entity, or permit any of the Primero Glamis Subsidiaries or any of the Glamis Significant Interest Companies to acquire or agree to acquire any corporation, partnership corporation or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, claim or dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero Glamis delivered to Northgate Goldcorp and which are, individually or in the aggregate, in an amount in excess of $500,000 750,000 or which constitutes a claim, dispute, Liability or obligation claim between Primero Glamis and any of the Primero Subsidiaries a Glamis Subsidiary or between Primero Glamis Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000750,000; or (C) enter into any interest rate, currency or commodity swaps, ▇h▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entitymoney, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the aboveGlamis Subsidiaries or any of the Glamis Significant Interest Companies to incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money;
(x) initiate except as required by Canadian GAAP, any other generally accepted accounting principle to which any Glamis Subsidiary or any Glamis Significant Interest Company may be subject or any applicable Law, make any changes to the existing accounting practices of Glamis or make any material discussion, negotiations or filings tax election inconsistent with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;past practice; or
(xi) enter into, or cause any Primero Glamis Subsidiaries or any of the Glamis Significant Interest Companies to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: than (A) ordinary course expenditures; (B) expenditures required by Lawslaw; and (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 1 contract
Sources: Amending Agreement (Glamis Gold LTD)
Certain Actions Prohibited. Other than as disclosed in the Primero Kinross Disclosure Letter, Letter or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreementherein, Primero and, except where doing so would not have a Material Adverse Effect on Kinross, Kinross shall not, without the prior written consent of NorthgateBema, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause any of the Primero Subsidiaries permit to do, occur any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, or permit any of the Primero Subsidiaries a Kinross Subsidiary to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Kinross or any of the Primero SubsidiariesKinross Subsidiaries or any of the shares representing Kinross' interest in the Kinross Significant Interest Companies, other than the issue of Primero Kinross Common Shares pursuant to the valid exercise of the Primero Kinross Options and Primero or the Kinross Warrants issued and outstanding on the date hereof hereof, in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons), sell, lease, encumber or otherwise dispose of, or permit any of the Primero Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effect;
(iii) amend or propose to amend the articles, notice of articles or by-laws (or their equivalent equivalent) of Primero Kinross or any of the Primero Kinross Subsidiaries or any of the terms of the Primero Kinross Options and Primero or the Kinross Warrants as they exist at the date of this Agreement;
(iviii) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero Kinross or any of the Primero Subsidiaries, Kinross Subsidiaries or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesKinross;
(viv) redeem, purchase or offer to purchase, or permit any of the Primero Kinross Subsidiaries to redeem, purchase or offer to purchase, any Primero Kinross Common Shares and, other than pursuant to the Primero Stock Kinross Share Option PlanPlans, any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree commitments to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangementpurchase Kinross Common Shares; or
(xvv) except as required by Canadian GAAP, agree or any other generally accepted accounting principle commit to which do any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreementforegoing.
Appears in 1 contract
Sources: Merger Agreement (Kinross Gold Corp)
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, required or in contemplation of, as required to give effect to the transactions expressly permitted or specifically contemplated by this Agreement or as permitted under this Agreement, Primero AuRico shall not, without the prior written consent of NorthgateAlamos, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause or permit any of the Primero AuRico Subsidiaries to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of NorthgateAlamos, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero AuRico Subsidiaries to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero AuRico or any of the Primero AuRico Subsidiaries, other than the issue of Primero AuRico Shares pursuant to in accordance with the valid exercise of the Primero Options and Primero Warrants AuRico Options, AuRico Convertible Notes, AuRico PSUs, AuRico RSUs, AuRico DSUs, AuRico A&R Share Purchase Plan, AuRico DRIP issued and outstanding on the date hereof in accordance with their terms as of the date hereof, hereof or as required by the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker WarrantsAuRico 2013 Rights Plan;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons), sell, lease, encumber or otherwise dispose of, or permit any of the Primero AuRico Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articles, notice of articles or articles, by-laws or other constating documents or their equivalent of Primero AuRico or any of the Primero AuRico Subsidiaries or any of the terms of the Primero Options and Primero Warrants AuRico Shares, AuRico Options, AuRico DSUs, AuRico PSUs, AuRico RSUs, AuRico Convertible Notes or AuRico Senior Secured Notes as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero AuRico or any of the Primero AuRico Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero AuRico Shares or the shares of any of the Primero SubsidiariesAuRico Subsidiaries (other than quarterly cash dividends in respect of the AuRico Shares in the ordinary course of business of AuRico);
(v) redeem, purchase or offer to purchase, or permit any of the Primero AuRico Subsidiaries to redeem, purchase or offer to purchase, any Primero AuRico Shares and, other than pursuant to the Primero Stock Option AuRico 2013 LTIP, AuRico Convertible Notes, AuRico 2013 Rights Plan, AuRico A&R Share Purchase Plan or AuRico DRIP any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor take any action that would result in any amendment, modification, or change of any term of any Financial Indebtedness by AuRico or any of the Primero AuRico Subsidiaries;
(vii) adopt, or permit any of the AuRico Subsidiaries will adopt to adopt, any resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(viiviii) acquire or agree to acquire any corporation, partnership (or other entity Person (or material interest therein) or division of any corporation or other entity, or permit any of the Primero AuRico Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity Person (or material interest therein) or division of any corporation or other entity;
(viiiix) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, for any Liability or obligation between Primero AuRico and any of the Primero AuRico Subsidiaries or between Primero AuRico Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,0005,000,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license licence or other binding obligation of Primero AuRico or any of the Primero AuRico Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero AuRico or any of the Primero AuRico Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Amalco or any to its Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero AuRico or any of the Primero AuRico Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate Amalco or any of the Northgate its Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero AuRico or any of the Primero AuRico Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate Amalco or any of the Northgate subsidiariesits Subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license licence or other binding obligation of Primero AuRico or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate AuRico Subsidiaries that involves or would reasonably be expected to involve aggregate payments in excess of $500,000 in the aggregate over the term of the contractcontract in excess of $10,000,000;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entityPerson, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(xxi) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero AuRico Property or the Primero AuRico Mineral Rights) without the prior consent of Northgate Alamos such consent not to be unreasonably withheld, and further agrees agrees, subject to applicable Law, to provide Northgate Alamos with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xixii) enter into, or cause any Primero AuRico Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xiixiii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for ordinary course salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiiixiv) adopt or amend or make any material contribution to the Primero any AuRico Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture AuRico 2013 LTIP or any other bonus, profit sharing, retention, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with applicable Laws or with respect the terms of such plans, programs, arrangements or agreements where the failure to existing provisions so comply would result in a material breach of any such plans, programs, arrangements or agreements;
(xivxv) take actions or fail to take any action that could reasonably be expected to be prejudicial to NorthgateAmalco’s or New AuRico’s interest in the business, property or assets of Primero AuRico or any of the Primero AuRico Subsidiaries following the closing of the Arrangement; or;
(xvxvi) acquire any securities of Alamos or any option, rights or entitlements to acquire any securities of Alamos or enter into any commitment or agreement to do any of the foregoing;
(xvii) except as required by Canadian GAAP, IFRS or any other generally accepted accounting principle to which any of the Primero AuRico Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero AuRico or any of the Primero AuRico Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement; or
(xviii) (i) transfer, sell, assign, gift or dispose of all or any portion of any of the assets, properties or rights of AuRico or any of the AuRico Subsidiaries or any interest therein to New AuRico, or (ii) grant to New AuRico any right, option or privilege to acquire all or any portion of any of the assets, properties or rights of AuRico or any of the AuRico Subsidiaries or any interest therein, in each case other than the New AuRico Property in accordance with the Arrangement.
Appears in 1 contract
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, of or as required to give effect to the transactions Arrangement or the Transactions contemplated by this Agreement herein or as permitted under this Agreementrequired by applicable Laws or any Governmental Entity, Primero Vitran shall not (and shall ensure that the Vitran Subsidiaries do not), without the prior written consent of Northgate, which consent shall not be unreasonably withheld or delayedPurchaser, directly or indirectly do or cause any of the Primero Subsidiaries permit to do, occur any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, or permit any of the Primero Subsidiaries a Vitran Subsidiary to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Vitran or any of the Primero Vitran Subsidiaries, other than the issue of Primero up to 590,750 Common Shares pursuant to the valid exercise of the Primero Vitran Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant in the Ordinary Course, or as set out in the Vitran Disclosure Letter, in respect of rights, properties or assets that are not, either individually or in the aggregate, material to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons)Vitran, sell, lease, encumber lease or otherwise dispose of, or permit any of the Primero Vitran Subsidiaries to sell, lease, encumber lease or otherwise dispose of, any material property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articles, notice of articles or by-laws (or their equivalent equivalent) of Primero Vitran or any of the Primero Vitran Subsidiaries or or, except for purposes of and as provided in Section 8(v), any of the terms of the Primero Vitran Options and Primero Warrants or Vitran DSUs as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero Vitran or any of the Primero Vitran Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesCommon Shares;
(v) redeem, purchase or offer to purchase, purchase or permit any of the Primero Vitran Subsidiaries to redeem, purchase or offer to purchase, any Primero Shares and, other than pursuant to the Primero Stock Option Plan, any other securities or rights under existing contracts, agreements and commitmentsCommon Shares;
(vi) neither Primero nor reorganize, amalgamate or merge Vitran or any of the Primero Vitran Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or with any other extraordinary transaction in respect of itself, or adopt any plan of liquidationPerson other than another Vitran Subsidiary;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability material claims or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and disputes which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiariesaggregate material to Vitran; (B) relinquish any contractual rights that which are, individually or in the aggregate, in an amount in excess of $500,000aggregate material to Vitran; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business Ordinary Course and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur except as set out in the Vitran Disclosure Letter, incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, in excess of USD$1,000,000 in the obligations of any other individual or entityaggregate, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the aboveVitran Subsidiaries to incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries Vitran Subsidiary may be subject, subject or any applicable Laws, make any changes to the existing accounting policies practices of Primero or any of the Primero Subsidiaries Vitran or make any material tax election inconsistent with past practice practice;
(xi) adopt a plan of liquidation or resolutions providing for the liquidation or dissolution of Vitran or any of the Vitran Subsidiaries;
(xii) make any capital expenditure or commitment to do so other than in the Ordinary Course or which individually or in the aggregate exceed USD$1,000,000 except in accordance with the approved annual budget of Vitran or as contemplated disclosed in the Vitran Disclosure Letter;
(xiii) make any material Tax election, information schedule, return or designation, settle or compromise any material Tax claim, assessment, reassessment or liability, file any material amended Tax Return, enter into any material agreement with a Governmental Entity with respect to Taxes, surrender any right to claim a material Tax abatement, reduction, deduction, exemption, credit or refund, consent to the extension or waiver of the limitation period applicable to any material Tax matter or materially amend or change any of its methods or reporting income, deductions or accounting for income Tax purposes except as may be required by Law;
(xiv) knowingly take any action or knowingly permit inaction or knowingly enter into any transaction that could reasonably be expected to have the effect of materially reducing or eliminating the amount of the tax cost “bump” pursuant to paragraphs 88(1)(c) and 88(1)(d) of the Tax Act in respect of the securities of any Affiliates of Vitran or any Vitran Subsidiary and other non-depreciable capital property owned by Vitran or any of the Vitran Subsidiaries on the date hereof, upon an amalgamation or winding-up of Vitran or any of the Vitran Subsidiaries (or any of their respective successors);
(xv) make an “investment” (as that term is defined in section 212.3 of the Tax Act) in any corporation that is, or will be prior to the Effective Time, a “foreign affiliate” of Vitran for purposes of the Tax Act;
(xvi) make any bonus or profit sharing distribution or similar payment of any kind, other than pursuant to the employment agreements, retention agreements and transaction incentive agreements disclosed in the Vitran Disclosure Letter;
(xvii) except as required by Laws: (i) adopt, enter into or amend any Employee Plan (other than entering into an employment or consulting agreement in the Ordinary Course with a new non-management employee who was not employed or retained by Vitran or a Vitran Subsidiary on the date of this AgreementAgreement or renewing an existing employment or consulting agreement in the Ordinary Course); (ii) pay any benefit to any director or officer of Vitran or any of the Vitran Subsidiaries or to any Employee that is not required under the terms of any Employee Plan or the employment, retention or transaction incentive agreements in effect on the date of this Agreement as disclosed in the Vitran Disclosure Letter; (iii) grant, accelerate, increase or otherwise amend any payment, award or other benefit, in any material respect, payable to, or for the benefit of, any director or officer of Vitran or any of the Vitran Subsidiaries or to any Employee; (iv) make any material determination under any Employee Plan that is not in the Ordinary Course; or (v) take or propose any action to effect any of the foregoing;
(xviii) enter into or amend any contract with any broker, finder or investment banker; or
(xix) agree or commit to do any of the foregoing.
Appears in 1 contract
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as otherwise permitted under pursuant to this Agreement, Primero Champignon shall not, without the prior written consent of NorthgateAltMed, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries following prior to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable LawsEffective Date:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grant, pledge, lease, dispose of, or encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero or any of the Primero SubsidiariesChampignon, other than the issue of Primero Champignon Shares pursuant to the valid exercise of the Primero Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or upon the exercise of the Primero Broker Champignon Options and Champignon Warrants;
(ii) incur or commit to incur any debt, except in the ordinary and regular course of business, or to finance its working capital requirements, or as otherwise contemplated herein in connection with the transactions contemplated by this Agreement;
(iii) declare or pay any dividends or distribute any of its properties or assets to shareholders with respect to the Champignon Shares;
(iv) enter into material contracts, other than in the ordinary and regular course of business, in connection with the Amalgamation or as otherwise contemplated herein;
(v) alter or amend its bylaws or articles, other than as may be required in connection with the transactions contemplated herein;
(vi) engage in any business enterprise or other activity different from that carried on or contemplated as of the date hereof;
(vii) other than pursuant to obligations the terms of property acquisitions or rights under existing contracts, agreements in the ordinary and commitments (to the extent such rights have been exercised or initiated by other Persons)regular course of business, sell, pledge, lease, dispose of, grant any interest in, encumber or otherwise agree to sell, pledge, lease, dispose of, grant any interest in or permit encumber any of the Primero Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or its assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse EffectEffect on Champignon;
(iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero or any of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero Subsidiaries;
(vviii) redeem, purchase or offer to purchase, or permit purchase any of the Primero Subsidiaries to redeemChampignon Shares, purchase Champignon Warrants, Champignon Options, or offer to purchase, any Primero Shares andother securities, other than pursuant to in accordance with the Primero Stock Option Planpreviously announced normal course issuer bid of Champignon; and
(ix) acquire, directly or indirectly, any assets, including but not limited to securities of other securities or rights under existing contractscompanies, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 1 contract
Sources: Amalgamation Agreement
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as otherwise permitted under pursuant to this Agreement, Primero RedLion shall not, without the prior written consent of NorthgateBravura, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries following prior to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable LawsEffective Date:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grant, pledge, lease, dispose of, or encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero or any of the Primero SubsidiariesRedLion, other than the issue of Primero RedLion Common Shares upon the exercise of RedLion Options, the issue of RedLion Common Shares and RedLion Warrants pursuant to the valid exercise of the Primero Options and Primero Warrants issued and outstanding on any equity financing conducted between the date hereof in accordance with their terms as and the Closing Date, and the issue of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or RedLion Common Shares upon the exercise of the Primero Broker RedLion Warrants;
(ii) incur or commit to incur in any debt, except in the ordinary and regular course of business, or to finance its working capital requirements, or as otherwise contemplated in connection with the transactions contemplated in this Agreement;
(iii) declare or pay any dividends or distribute any of its property or assets to shareholders with respect to the RedLion Common Shares;
(iv) enter into any material contracts, other than in the ordinary and regular course of business, in connection with the Amalgamation or as otherwise contemplated herein;
(v) alter or amend its notice of articles or articles, other than as may be required in connection with the transactions contemplated herein;
(vi) engage in any business enterprise or other activity different from that carried on or contemplated as of the date hereof;
(vii) other than pursuant to obligations the terms of property acquisitions or rights under existing contracts, agreements in the ordinary and commitments (to the extent such rights have been exercised or initiated by other Persons)regular course of business, sell, pledge, lease, dispose of, grant any interest in, encumber or otherwise agree to sell, pledge, lease, dispose of, grant any interest in or permit encumber any of the Primero Subsidiaries to sellits assets, lease, encumber or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse EffectEffect on RedLion;
(iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero or any of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero Subsidiaries;
(vviii) redeem, purchase or offer to purchase, or permit purchase any of the Primero Subsidiaries to redeemRedLion Common Shares, purchase RedLion Options or offer to purchaseother securities; or
(ix) acquire, directly or indirectly, any Primero Shares andassets, including but not limited to securities of other than pursuant to the Primero Stock Option Plancompanies, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 1 contract
Sources: Amalgamation Agreement
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, as required to give effect to the transactions contemplated by this Agreement or as permitted under this by the Amalgamation Agreement, Primero New Age shall not, without the prior written consent of Northgate117, which consent shall not be unreasonably withheld or delayedwithheld, directly or indirectly do or agree to do, or cause any of the Primero Subsidiaries New Age Subsidiary to do or agree to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) other than as contemplated hereunder, issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soon, or permit any of the Primero Subsidiaries a Subsidiary to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soon, any common shares or other securities ofin the capital of New Age, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any common shares of, Primero of New Age or any of the Primero Subsidiaries, other than the issue of Primero Shares pursuant to the valid exercise of the Primero Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker WarrantsNew Age Subsidiary;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons)persons) or as required in the ordinary and regular course of business, sell, lease, encumber or otherwise dispose of, or permit any of the Primero Subsidiaries New Age Subsidiary to sell, lease, encumber or otherwise dispose of, any material property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectassets;
(iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero or any of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the common shares or other securities in the capital of Primero or any of the Primero Subsidiaries, New Age or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero Subsidiariessuch common shares;
(viv) redeem, purchase or offer to purchase, or permit any of the Primero Subsidiaries New Age Subsidiary to redeem, purchase or offer to purchase, any Primero Shares and, other than pursuant to common shares in the Primero Stock Option Plan, capital of New Age and any other securities options or obligations or rights under existing contracts, agreements and commitments;
(viv) neither Primero nor any of the Primero Subsidiaries will other than as contemplated hereby, adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(viivi) acquire make, or agree permit any New Age Subsidiary to acquire make, any material: (A) acquisition of a corporation, partnership (or division of any corporation or other entity or material interest therein; or (B) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entityinvestment;
(viiivii) (A) satisfy or settle any claimclaims or disputes, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated New Age's financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, aggregate in an amount in excess of $500,00050,000; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ixviii) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advancesin each case in or for a material amount; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorizationlicense, lease, contract, production sharing agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; or (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xiix) enter into, or cause any Primero Subsidiaries Subsidiary to enter into, material new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Lawslaw; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xiix) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements arrangements, and directors’ ' fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual normal course of business;
(xiiixi) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, insurance, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as if it is necessary to comply with Laws the law or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xivxii) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate117’s interest in the business, affairs or property or assets of Primero or any of the Primero Subsidiaries New Age and its Subsidiary following the closing of the Arrangement; orAmalgamation;
(xiii) enter into or modify any employment, consulting, severance, collective bargaining or similar agreement, policy or arrangement with, or grant any bonus, salary, increase, option to purchase shares, pension or supplemental pension benefit, profit sharing, retirement allowance, deferred compensation, incentive compensation, severance, change of control or termination pay to, or make any loan to, any officer, director, employee or consultant of New Age or any New Age Subsidiary;
(xiv) take any action, or refrain from taking any action, or permit any action to be take or not taken, inconsistent with the provisions of this Agreement or which would reasonably be expected to materially impede the completion of the transactions contemplated hereby or would render, or that could reasonably be expected to render, any representation or warranty made by New Age in this Agreement untrue or inaccurate in any material respect at any time prior to the Effective Date if then made, or which would or could have a Material Adverse Effect on New Age;
(xv) except as required settle or compromise any material claim brought by Canadian GAAPany present, former or purported holder of any securities of New Age in connection with the transactions contemplated by this Agreement prior to the Effective Date; and
(xvi) enter into, renew or modify in any respect any material contract, agreement, lease, commitment or arrangement to which New Age or any other generally accepted accounting principle to New Age Subsidiary is a party or by which any of the Primero Subsidiaries them is bound, except insofar as may be subject, necessary to permit or any applicable Laws, make any changes to provide for the existing accounting policies of Primero or any completion of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this AgreementAmalgamation.
Appears in 1 contract
Sources: Acquisition Agreement
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letterby Glamis, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero Glamis shall not, without the prior written consent of Northgate, which consent shall not be unreasonably withheld or delayedGoldcorp, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries to do, any of the following, following except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, or permit any of the Primero Subsidiaries a Glamis Subsidiary to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Glamis, any of the Glamis Subsidiaries or any of the Primero SubsidiariesGlamis Significant Interest Companies, other than the issue of Primero Glamis Common Shares pursuant to the valid exercise of the Primero Glamis Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Personspersons), sell, lease, encumber lease or otherwise dispose of, or permit any of the Primero Glamis Subsidiaries or any of the Glamis Significant Interest Companies to sell, lease, encumber lease or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articlesNotice of Articles, notice of articles Articles or by-laws (or their equivalent equivalent) of Primero Glamis or any of the Primero Glamis Subsidiaries or any of the Glamis Significant Interest Companies or any of the terms of the Primero Glamis Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero Glamis, any of the Glamis Subsidiaries or any of the Primero SubsidiariesGlamis Significant Interest Companies, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of Glamis, any of the Primero SubsidiariesGlamis Subsidiaries or any of the Glamis Significant Interest Companies;
(v) redeem, purchase or offer to purchase, or permit any of the Primero Glamis Subsidiaries or any of the Glamis Significant Interest Companies to redeem, purchase or offer to purchase, any Primero Glamis Common Shares and, other than pursuant to the Primero Stock Glamis Share Option Plan, any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor reorganize, amalgamate or merge Glamis, any of the Primero Glamis Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any of the Glamis Significant Interest Companies with any other extraordinary transaction in respect of itself, or adopt any plan of liquidationperson;
(vii) acquire or agree to acquire any corporation, partnership (corporation or other entity (or material interest therein) or division of any corporation or other entity, or permit any of the Primero Glamis Subsidiaries or any of the Glamis Significant Interest Companies to acquire or agree to acquire any corporation, partnership corporation or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, claim or dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero Glamis delivered to Northgate Goldcorp and Goldcorp Subco, and which are, individually or in the aggregate, in an amount in excess of $500,000 750,000 or which constitutes a claim, dispute, Liability or obligation claim between Primero Glamis and any of the Primero Subsidiaries a Glamis Subsidiary or between Primero Glamis Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000750,000; or (C) enter into any interest rate, currency or commodity swaps, ▇h▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entitymoney, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the aboveGlamis Subsidiaries or any of the Glamis Significant Interest Companies to incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money;
(x) initiate except as required by Canadian GAAP, any other generally accepted accounting principle to which any Glamis Subsidiary or any Glamis Significant Interest Company may be subject or any applicable Law, make any changes to the existing accounting practices of Glamis or make any material discussion, negotiations or filings tax election inconsistent with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;past practice; or
(xi) enter into, or cause any Primero Glamis Subsidiaries or any of the Glamis Significant Interest Companies to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: than (A) ordinary course expenditures; (B) expenditures required by Lawslaw; and (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 1 contract
Certain Actions Prohibited. Other than as disclosed in the Primero Bema Disclosure Letter, Letter or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreementherein, Primero Bema shall not (and shall ensure that the Bema Subsidiaries do not), without the prior written consent of NorthgateKinross, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause any of the Primero Subsidiaries permit to do, occur any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, or permit any of the Primero Subsidiaries a Bema Subsidiary to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Bema or any of the Primero SubsidiariesBema Subsidiaries or any of the shares representing Bema's interest in the Bema Significant Interest Companies, other than the issue of Primero Bema Common Shares pursuant to the valid exercise of the Primero Bema Options and Primero or the Bema Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than in the ordinary and regular course of business consistent with past practice, in respect of rights, properties or assets that are not, either individually or in the aggregate, material to Bema, or pursuant to obligations or rights under existing contracts, agreements and commitments disclosed in the Bema Disclosure Letter (to the extent such rights have been exercised or initiated by other Personspersons), sell, lease, encumber lease or otherwise dispose of, or permit any of the Primero Bema Subsidiaries to sell, lease, encumber lease or otherwise dispose of, any material property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articles, notice of articles or by-laws (or their equivalent equivalent) of Primero Bema or any of the Primero Bema Subsidiaries or any of the terms of the Primero Bema Options and Primero or the Bema Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero Bema or any of the Primero Bema Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesBema;
(v) redeem, purchase or offer to purchase, purchase or permit any of the Primero Bema Subsidiaries to redeem, purchase or offer to purchase, any Primero Bema Common Shares and, other than pursuant to the Primero Stock Bema Share Option PlanPlans, any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor reorganize, amalgamate or merge Bema or any of the Primero Bema Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or with any other extraordinary transaction in respect of itself, or adopt any plan of liquidationperson other than another Bema Subsidiary;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability claims or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and disputes which are, individually or in the aggregate, in an amount in excess of $500,000 5,000,000 or which constitutes constitute a claim, dispute, Liability or obligation claim between Primero Bema and any of the Primero Subsidiaries a Bema Subsidiary or between Primero Bema Subsidiaries; (B) relinquish any contractual rights that which are, individually or in the aggregate, in an amount in excess of $500,0005,000,000; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, in excess of $20,000,000 in the obligations of any other individual or entityaggregate, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the aboveBema Subsidiaries to incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries Bema Group Company may be subject, subject or any applicable Laws, make any changes to the existing accounting policies practices of Primero or any of the Primero Subsidiaries Bema or make any material tax election inconsistent with past practice other than as contemplated in this Agreementpractice; or
(xi) agree or commit to do any of the foregoing.
Appears in 1 contract
Sources: Merger Agreement (Kinross Gold Corp)
Certain Actions Prohibited. Other than as disclosed set out in the Primero Allana Disclosure Letter, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this AgreementTransaction, Primero Allana shall not, without the prior written consent of Northgate, which Nova (such consent shall not to be unreasonably withheld or delayedwithheld), directly or indirectly indirectly, do or cause any of the Primero Subsidiaries permit to do, occur any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, allot, reserve, set aside, authorize, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, allot, reserve, set aside, authorize, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, or permit any either of the Primero Allana Subsidiaries to issue, allot, reserve, set aside, authorize, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, allot, reserve, set aside, authorize, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges Convertible Securities or rights of any kind to acquire any shares of, Primero Allana or any of the Primero Allana Subsidiaries, including without limitation, the Allana Common Shares, other than the issue of Primero Allana Common Shares pursuant to the valid exercise of the Primero Options and Primero Allana Options, Allana Warrants issued and or other rights issued, outstanding or existing on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been or may be exercised or initiated by other Persons), sell, lease, encumber lease or otherwise dispose of, or allow any Encumbrance on, or permit any either of the Primero Allana Subsidiaries to sell, lease, encumber lease or otherwise dispose of, or allow any Encumbrance on, any material property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectoutside of the ordinary course of business;
(iii) amend or propose to amend the articles, notice of articles Articles or by-laws (or their equivalent equivalent) of Primero Allana or any either of the Primero Subsidiaries Allana Subsidiaries, the Allana Option Plan or any of the terms of the Primero Allana Options and Primero or the Allana Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero Allana Common Shares or any of the Primero shares of either of the Allana Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Allana Common Shares or the any shares of any either of the Primero Allana Subsidiaries;
(v) redeem, purchase or offer to purchase, or permit any either of the Primero Allana Subsidiaries to redeem, purchase or offer to purchase, any Primero Allana Common Shares and, other than pursuant to the Primero Stock Allana Option Plan, Plan and instruments with respect to the Allana Options or the Allana Warrants outstanding as at the date hereof any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor reduce its stated capital, return capital to its shareholders or repay any of the Primero Subsidiaries will indebtedness for borrowed money before it is due;
(vii) adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, Allana or either of the Allana Subsidiaries or adopt any plan of liquidation;
(viiviii) acquire or agree to acquire any corporation, partnership (corporation or other entity (or material interest therein) or division of any corporation or other entity, or permit any either of the Primero Allana Subsidiaries to acquire or agree to acquire any corporation, partnership corporation or other entity (or material interest therein) or division of any corporation or other entity;
(viiiix) (A) satisfy or settle any claim, claim or dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate Allana Financial Statements and which are, individually or in the aggregate, in an amount in excess of $500,000 Allana Disclosure Letter or which constitutes a claim, dispute, Liability or obligation claim between Primero Allana and any either of the Primero Subsidiaries or between Primero Allana Subsidiaries; (B) grant any waiver, exercise any option or relinquish any contractual rights that are, individually rights; or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments instruments;
(x) incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money, or permit any of Allana or the Allana Subsidiaries to incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money;
(xi) except as required by IFRS, any other than in generally accepted accounting principles to which Allana or either of the ordinary and regular course Allana Subsidiaries may be subject or any applicable Law, make any changes to the existing accounting practices of business and not for speculative purposes; Allana or make any material tax election, file any amended Tax Return, settle or compromise any Tax liability, agree to an extension or waiver of the limitation period with respect to the assessment, reassessment or determination of Taxes, enter into any closing agreement with respect to any Tax or surrender any right to claim a Tax refund;
(Dxii) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage modify in any type of activity material respect any agreements or business, (b) amalgamations or take any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) other action that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contracthave a Material Adverse Effect on Allana;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (Exiii) enter into or terminate amend any ▇▇▇▇▇▇agreements, swaps amalgamations or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreementtransactions with any related entity; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;or
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xixiv) enter into, or cause any Primero of Allana or the Allana Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: than (A) ordinary course expenditures; (B) expenditures required by Lawslaw; (C) expenditures made in connection with transactions contemplated in this Agreementthe Transaction; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations such expenses that have been jointly approved by Allana and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this AgreementNova.
Appears in 1 contract
Sources: Merger Agreement
Certain Actions Prohibited. Other than as disclosed by ▇▇▇▇ in the Primero Alio Disclosure Letter, in connection with, or ancillary to, the proposed sale of Alio's ownership interest in contemplation Noroeste and/or a sale of Alio's ownership interest in, or all or substantially all of the assets of, ▇▇▇▇▇▇ ▇▇▇▇▇ or except as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreementherein, Primero Alio shall not, without the prior written consent of NorthgateArgonaut, which consent shall not be unreasonably withheld withheld, conditioned or delayed, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries to do, any of the following, following except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, lease or dispose of, encumber or create any Encumbrance on of or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grant, pledge, lease, lease or dispose of, encumber or create of any Encumbrance on or agree to do so, any shares or other securities of, Alio Shares or any optionsAlio Options, warrantsAlio Warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero or any of the Primero Subsidiaries, ▇▇▇▇ ▇▇▇▇▇▇; other than the issue of Primero Shares ▇▇▇▇ ▇▇▇▇▇▇ pursuant to the valid exercise of the Primero Alio Options and Primero or Alio Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons), sell, lease, encumber lease or otherwise dispose of, or permit of any of the Primero Subsidiaries to sell, lease, encumber or otherwise dispose of, any property Alio Properties or assets having a value greater than $50,000 or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) grant or enter into any agreement, written or verbal, with respect to any royalty or similar arrangement or issue any instrument having the same economic effect as a royalty on the Alio Properties;
(iv) abandon or fail to diligently pursue any application to renew any existing licence, permit, order, claim, authorization, consent, approval (including Environmental Approvals) or registration related to the Alio Properties;
(v) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero or any of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants Alio as they exist at the date of this Arrangement Agreement;
(ivvi) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesAlio;
(vvii) redeem, purchase or offer to purchasepurchase any Alio Shares, Alio Options, Alio Warrants or permit any of the Primero Subsidiaries to redeem, purchase or offer to purchase, any Primero Shares and, other than pursuant to the Primero Stock Option Plan, any other securities obligations or rights under existing contracts, agreements and commitments;
(viviii) neither Primero nor any of the Primero Subsidiaries will adopt resolutions reorganize, amalgamate or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidationmerge Alio;
(viiix) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viiix) (A) satisfy settle, pay, discharge, satisfy, compromise, waive, assign or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregaterelease, in an amount greater than $50,000, (i) any action, claim or proceeding brought by or against Alio, or (ii) any action, claim or proceeding brought by or against any present, former or purported holder of its securities in excess connection with the transactions contemplated by this Arrangement Agreement or the Plan of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero SubsidiariesArrangement; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,00050,000; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; ;
(Dxi) enter into incur, authorize, agree or renew otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries indebtedness for borrowed money;
(1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (Exii) except as provided required by IFRS or in Primero’s any applicable Law, make any changes to the existing accounting practices of Alio;
(xiii) approve any plan, program or budget for Alio or amend or revise any existing plan, program or budget for Alio including, but not limited to, the current budget, not enter into the social and permitting program or renew the drill program;
(xiv) except for expenditures under ▇▇▇▇'s current program, incur or commit to incur any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments expenditure for an amount in excess of $500,000 in the aggregate over the term of the contract50,000;
(ixxv) enter into new commitments of a capital expenditure nature or incur any new contingent liabilities other than (A) acquire any material assetsordinary course expenditures; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees expenditures required by Law; and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change expenditures made in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts connection with transactions contemplated in existence as of the date of this Arrangement Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(xxvi) Alio shall not initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Arrangement Agreement or regarding the status of the Primero Property Alio Properties or the Primero Alio Mineral Rights) without the prior consent of Northgate Argonaut such consent not to be unreasonably withheld, and further agrees to provide Northgate Argonaut with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xiixvii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ ' fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiiixviii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Alio Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, insurance, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xivxix) take actions enter into, ▇▇▇▇▇, modify, or fail propose to take modify in any action that could reasonably respect any Material Contract with respect to the Alio Properties to which ▇▇▇▇ is a party or by which it is bound, except insofar as may be expected necessary to be prejudicial to Northgate’s interest in permit or provide for the business, property or assets of Primero or any of the Primero Subsidiaries following the closing completion of the Arrangement;
(xx) make or amend any material Tax election, materially change any method of Tax accounting or settle or compromise any Tax liability of ▇▇▇▇;
(xxi) fail to duly and timely file any material Tax Returns required to be filed by ▇▇▇▇ on or after the date hereof, and all such Tax Returns will be true, complete and correct in all material respects; or
(xvxxii) except as required fail to timely withhold, collect, remit and pay any material Taxes which are to be withheld, collected, remitted or paid by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes ▇▇▇▇ to the existing accounting policies of Primero or extent due and payable except for any of Taxes contested in good faith pursuant to applicable Laws that are not required to be paid under applicable Laws and for which sufficient provision is made in the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreementrelevant financial statements.
Appears in 1 contract
Sources: Arrangement Agreement
Certain Actions Prohibited. Other than Except as disclosed consented to in the Primero Disclosure Letter, writing by TAG (such consent not to be unreasonably withheld or in contemplation of, delayed) or as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero shall not, without the prior written consent of Northgate, which consent Trans-Orient shall not be unreasonably withheld or delayed, directly or indirectly do or cause any of the Primero Subsidiaries permit to do, occur any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, or permit any of the Primero Trans-Orient Subsidiaries to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Trans-Orient or any of the Primero Trans-Orient Subsidiaries, other than the issue of Primero Trans-Orient Common Shares pursuant to the valid exercise of the Primero Options and Primero outstanding Trans-Orient Options, or Trans-Orient Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Personspersons), sell, lease, encumber lease or otherwise dispose of, or permit any of the Primero Trans- Orient Subsidiaries to sell, lease, encumber lease or otherwise dispose of, any material property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articles, notice of articles or by-laws (or their equivalent equivalent) of Primero Trans- Orient or any of the Primero Trans-Orient Subsidiaries or any of the terms of the Primero Options and Primero Trans- Orient Options, or Trans-Orient Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero Trans-Orient or any of the Primero Trans- Orient Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesTrans-Orient;
(v) redeem, purchase or offer to purchase, or permit any of the Primero Trans-Orient Subsidiaries to redeem, purchase or offer to purchase, any Primero Trans-Orient Common Shares and, other than pursuant to the Primero Trans-Orient Stock Option Plan, any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor reorganize, amalgamate or merge Trans-Orient or any of the Primero Trans-Orient Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or with any other extraordinary transaction in respect of itself, or adopt any plan of liquidationperson;
(vii) acquire or agree to acquire any corporation, partnership (corporation or other entity (or material interest therein) or division of any corporation or other entity, or permit any of the Primero Trans- Orient Subsidiaries to acquire or agree to acquire any corporation, partnership corporation or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claimclaim or liability, dispute, Liability or obligation that is not in the ordinary course of business except (x) such as have been included reserved against in the consolidated financial statements of Primero Trans-Orient delivered to Northgate TAG and TAG Subco, and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim50,000, dispute, Liability or obligation between Primero and any (y) in the ordinary course of the Primero Subsidiaries or between Primero Subsidiariesbusiness and consistent with past practice; (B) relinquish any contractual rights that which are, individually or in the aggregate, in an amount in excess of $500,00050,000; or (C) enter into any interest rate, rate or currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contractinstruments;
(ix) (A) acquire any material assets; (B) incur incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or to make capital expenditures or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entityto make capital expenditures, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussionTrans-Orient Subsidiaries to incur, negotiations authorize, agree or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees otherwise become committed to provide Northgate with immediate notice of any material communication (whether oral guarantees for borrowed money or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) make capital expenditures required or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money or to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify make capital expenditures in an amount either individually or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangementaggregate exceeding $20,000; or
(xvx) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, GAAP or any applicable LawsLaw, make any changes to the existing accounting policies practices of Primero or any of the Primero Subsidiaries Trans-Orient or make any material tax election inconsistent with past practice other than as contemplated in this Agreementpractice.
Appears in 1 contract
Sources: Arrangement Agreement (Trans-Orient Petroleum Ltd.)
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as otherwise permitted under pursuant to this Agreement, Primero Eco Endeavors shall not, without the prior written consent of Northgate▇▇▇▇, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries following prior to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable LawsEffective Date:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grant, pledge, lease, dispose of, or encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares ofof Eco Endeavors;
(ii) incur or commit to incur in any debt, Primero except in the ordinary and regular course of business, or to finance its working capital requirements, or as otherwise contemplated in connection with the transactions contemplated in this Agreement;
(iii) declare or pay any dividends or distribute any of its property or assets to shareholders with respect to the Primero SubsidiariesEco Endeavors Common Shares;
(iv) enter into any material contracts, other than in the issue ordinary and regular course of Primero Shares pursuant to business, in connection with the valid exercise Amalgamation or as otherwise contemplated herein;
(v) alter or amend its notice of articles or articles, other than as may be required in connection with the Primero Options and Primero Warrants issued and outstanding transactions contemplated herein;
(vi) engage in any business enterprise or other activity different from that carried on the date hereof in accordance with their terms or contemplated as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(iivii) other than pursuant to obligations or rights under existing contractssell, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons), sellpledge, lease, encumber or otherwise dispose of, grant any interest in, encumber or permit any of the Primero Subsidiaries agree to sell, pledge, lease, encumber or otherwise dispose of, grant any property interest in or assets or enter into any agreement or commitment in respect of encumber any of the foregoing its assets, except where to do so would not have a Material Adverse EffectEffect on Eco Endeavors;
(iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero or any of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero Subsidiaries;
(vviii) redeem, purchase or offer to purchase, or permit purchase any of the Primero Subsidiaries to redeemEco Endeavors Common Shares or other securities; or
(ix) acquire, purchase directly or offer to purchaseindirectly, any Primero Shares andassets, including but not limited to securities of other than pursuant to the Primero Stock Option Plancompanies, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 1 contract
Sources: Amalgamation Agreement (Blox, Inc.)
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as otherwise permitted under pursuant to this Agreement, Primero BMG shall not, without the prior written consent of NorthgateMadison, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries following prior to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable LawsClosing Date:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grant, pledge, lease, dispose of, or encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares ofof BMG;
(ii) incur or commit to incur any debt, Primero except in the ordinary and regular course of business, or to finance its working capital requirements, or as otherwise contemplated in connection with the transactions contemplated in this Agreement;
(iii) declare or pay any dividends or distribute any of its property or assets to shareholders with respect to the Primero SubsidiariesBMG Securities;
(iv) enter into any Material Contracts, other than in the issue ordinary and regular course of Primero Shares pursuant to business, except in connection with the valid exercise Share Exchange or as otherwise contemplated herein;
(v) alter or amend its notice of articles or articles, other than as may be required in connection with the Primero Options and Primero Warrants issued and outstanding transactions contemplated herein;
(vi) engage in any business enterprise or other activity different from that carried on the date hereof in accordance with their terms or contemplated as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(iivii) other than pursuant to obligations the terms of property acquisitions or rights under existing contracts, agreements in the ordinary and commitments (to the extent such rights have been exercised or initiated by other Persons)regular course of business, sell, pledge, lease, dispose of, grant any interest in, encumber or otherwise agree to sell, pledge, lease, dispose of, grant any interest in or permit encumber any of the Primero Subsidiaries to sellits assets, lease, encumber or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse EffectEffect on BMG;
(iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero or any of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero Subsidiaries;
(vviii) redeem, purchase or offer to purchasepurchase any BMG Common Shares or other securities; or
(ix) acquire, directly or permit any of the Primero Subsidiaries to redeem, purchase or offer to purchaseindirectly, any Primero Shares andassets, including but not limited to securities of other than pursuant to the Primero Stock Option Plancompanies, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 1 contract
Sources: Share Exchange Agreement (Battle Mountain Gold Inc.)
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, required or in contemplation of, as required to give effect to the transactions expressly permitted or specifically contemplated by this Agreement or as permitted under this Agreement, Primero Carlisle shall not, without the prior written consent of NorthgateAlamos, which consent shall not be unreasonably withheld withheld, conditioned or delayed, directly or indirectly do or cause any of the Primero Subsidiaries to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of NorthgateAlamos, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, sell or grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, sell or grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero or any of the Primero SubsidiariesCarlisle, other than the issue of Primero Carlisle Shares pursuant to in accordance with the valid exercise of the Primero Carlisle Options and Primero or Carlisle Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, hereof or as required by the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker WarrantsCarlisle Rights Plan;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons), sell, lease, encumber or otherwise dispose of, or permit any of the Primero Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where including pursuant to do so would not have a Material Adverse Effectany royalty, streaming or similar arrangement;
(iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero or any of the Primero Subsidiaries Carlisle or any of the terms of the Primero Carlisle Shares, Carlisle Options and Primero or Carlisle Warrants (except as set forth herein) as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero SubsidiariesCarlisle, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesCarlisle Shares;
(v) redeem, purchase or offer to purchase, or permit purchase any of the Primero Subsidiaries to redeem, purchase or offer to purchase, any Primero Carlisle Shares and, other than pursuant to the Primero Stock Carlisle Option Plans or the Carlisle Rights Plan, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor take any action that would result in any material amendment, modification or change of the Primero Subsidiaries will any term of any Financial Indebtedness by Carlisle;
(vii) adopt any resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(viiviii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity Person (or material interest therein) or division of any corporation or other entity;
(viiiix) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiariesbusiness; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000rights; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposesinstruments; (D) enter into or renew any lease, license licence or other binding obligation of Primero or any of the Primero Subsidiaries Carlisle (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries Carlisle or, following completion of the transactions contemplated hereby, the ability of Alamos or any of the Northgate Alamos Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries Carlisle or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate Alamos or any of the Northgate Alamos Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries Carlisle or, following completion of the transactions contemplated hereby, the ability of Northgate Alamos or any of the Northgate subsidiariesAlamos Subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 1 contract
Sources: Arrangement Agreement
Certain Actions Prohibited. Other than as disclosed expressly provided for in the Primero Disclosure Letter, or in contemplation of, as required to give effect to the transactions contemplated by this Agreement or as permitted under this Arrangement Agreement, Primero Lexam VG Gold shall not, and shall cause each Lexam VG Gold Subsidiary not to, without the prior written consent of Northgate, which consent shall not be unreasonably withheld or delayed▇▇▇▇▇▇ Mining, directly or indirectly indirectly, do or cause permit to occur any of the Primero Subsidiaries following prior to do, any the earlier of the following, except where to do so would be in Effective Time and the ordinary course termination of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Lawsthis Arrangement Agreement:
(i) issuesplit, sell, grant, pledge, lease, dispose of, encumber consolidate or create any Encumbrance on or agree to do so, or permit reclassify any of the Primero outstanding Lexam VG Gold Shares or shares of any Lexam VG Gold Subsidiaries to issue, sell, grant, pledge, lease, dispose of, encumber or create undertake any Encumbrance on or agree to do so, any shares or other securities ofcapital reorganization, or any options, warrants, calls, conversion privileges or rights reduce the stated capital in respect of any kind to acquire outstanding Lexam VG Gold Shares or shares of any shares of, Primero or any of the Primero Lexam VG Gold Subsidiaries, other than the issue of Primero Shares pursuant to the valid exercise of the Primero Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) settle or compromise any claim brought by any present, former or purported Lexam VG Shareholder or any present, former or purported holder of any other securities of Lexam VG Gold in connection with the Arrangement or any other transactions contemplated by this Arrangement Agreement, except as provided in this Arrangement Agreement;
(iii) amend its articles or by‐laws or the terms of any outstanding securities of Lexam VG Gold or any Lexam VG Gold Subsidiary;
(iv) take any action that would result in any amendment, modification or change of any term of any outstanding indebtedness or credit facility of Lexam VG Gold or any Lexam VG Gold Subsidiary;
(v) authorize, approve, agree to issue, issue or sell any securities, including convertible securities, (other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Personsissuance of Lexam VG Gold Shares upon the exercise of currently outstanding Lexam VG Gold Options in accordance with their terms), or redeem, offer to purchase or purchase any of its outstanding securities;
(vi) enter into, create, declare, adopt, amend, vary, modify or take any other action with respect to any bonus, target bonus, profit sharing, incentive, salary or other compensation, equity based award, pension, retirement, deferred compensation, severance, change of control, employment or other employee benefit plan, agreement, trust fund, award or arrangement for the benefit or welfare of any officer, director or employee, or similar rights or other benefits, except for changes in compensation for employees, other than officers and directors, in the Ordinary Course of Business;
(vii) enter into or renew any lease, license or other binding obligation of Lexam VG Gold or any of the Lexam VG Gold Subsidiaries containing any restriction on the ability of Lexam VG Gold and the Lexam VG Gold Subsidiaries or, following completion of the transactions contemplated hereby, the ability of ▇▇▇▇▇▇ Mining to: (A) engage in any type of activity or business; or (B) solicit customers or employees;
(viii) make any loan to, or enter into any other financial agreement with, any officer, director, employee or consultant of Lexam VG Gold or any of their respective affiliates;
(ix) acquire or dispose of any securities;
(x) commit to any single expense having a value in excess of $100,000;
(xi) acquire or commit to acquire any capital assets or group of related capital assets (through one or more related or unrelated acquisitions) having a value in excess of $100,000 in the aggregate;
(xii) except as contemplated, or incurred in connection with, the Arrangement and any other transactions contemplated by this Arrangement Agreement, including the costs contemplated in Section 9.04, incur or commit to incur operating expenditures, capital expenditures or any other expenditures in excess of $100,000 per month;
(xiii) sell, lease, option, encumber or otherwise dispose of, or permit any of the Primero Subsidiaries commit to sell, lease, option, encumber or otherwise dispose of, any property assets or group of related assets (through one or more related or unrelated transactions) having a value in excess of $100,000 in the aggregate, or any of the Lexam VG Gold Properties or Lexam VG Gold Mineral Rights;
(xiv) approve any business plan or budget or any amendment thereof;
(xv) grant any power of attorney to allow any Person to take any action on behalf of Lexam VG Gold or amend any power of attorney allowing any Person to take any action on behalf of Lexam VG Gold, other than in the Ordinary Course of Business;
(xvi) enter into any contract with a term of more than twelve (12) months, except in the Ordinary Course of Business;
(xvii) except in the Ordinary Course of Business: (A) incur or commit to incur any indebtedness for borrowed money (except for indebtedness not to exceed $100,000 in the aggregate for working capital purposes) or issue any debt securities; (B) incur or commit to incur, or guarantee, endorse or otherwise become responsible for, any other material liability, obligation or indemnity or the obligation of any other Person (whether accrued, absolute, contingent or otherwise); or (C) make any loans or advances to any Person;
(xviii) make any changes to the existing accounting policies of Lexam VG Gold or any Lexam VG Gold Subsidiary, other than as required by applicable Laws, Applicable Securities Laws or by IFRS;
(xix) pay, discharge or satisfy any material claims, liabilities or obligations, other than the payment, discharge or satisfaction of liabilities or obligations in the Ordinary Course of Business as they become due in accordance with their terms;
(xx) engage in any transaction with any related parties, other than in the Ordinary Course of Business or as contemplated by the Arrangement or any other transactions contemplated by this Arrangement Agreement or as disclosed in the Lexam VG Gold Public Documents;
(xxi) commit to or enter into any agreement new arrangements, or commitment in respect modify any existing arrangements, between Lexam VG Gold and any Lexam VG Gold Shareholder or holder of any other securities of the foregoing except where to do so would not have a Material Adverse EffectLexam VG Gold;
(iiixxii) commence or settle or assign any rights relating to or any interest in any litigation, proceeding, claim, action, assessment or investigation involving Lexam VG Gold or any of its material assets;
(xxiii) waive, release, grant, transfer, exercise, modify or amend in any material respect, other than in the Ordinary Course of Business: (A) any material Authorization (as hereinafter defined), lease, concession, contract or propose to amend the articlesother document; or (B) any other material rights, notice of articles claims or by-laws documents;
(xxiv) enter into any interest rate, currency, equity or their equivalent of Primero commodity swaps, ▇▇▇▇▇▇, derivatives or other similar financial instruments;
(xxv) cause its current insurance and re‐insurance policies within its control or any of the Primero Subsidiaries coverage thereunder to lapse, unless simultaneously with such termination, cancellation or any lapse, replacement policies underwritten by insurance and re‐ insurance companies of nationally recognized standing providing coverage equal to or greater than the terms of coverage under the Primero Options terminated, cancelled or lapsed policies at substantially similar premiums to the premiums for the policies that are currently in full force and Primero Warrants as they exist at the date of this Agreementeffect;
(ivxxvi) reduce its stated capital, increase any coverage or split, combine premiums under any directors' and officers' insurance policy or reclassify enter into any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero Subsidiariesnew such policy;
(vxxvii) redeemacquire or agree to acquire (by merger, amalgamation, arrangement, acquisition of stock or assets or otherwise) any Person (or material interest therein) or division of any Person or make any investment either by purchase of shares or offer to purchasesecurities, contributions of capital, property transfer or permit purchase of any property or assets of the Primero Subsidiaries to redeem, purchase or offer to purchase, any Primero Shares and, other than pursuant to the Primero Stock Option Plan, any other securities or rights under existing contracts, agreements and commitmentsPerson;
(vixxviii) neither Primero nor adopt a plan of liquidation or any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidationLexam VG Gold;
(viixxix) acquire fail to duly and timely file all material forms, reports, schedules, statements and other documents required to be filed pursuant to any applicable Laws or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entityApplicable Securities Laws;
(viiixxx) (A) satisfy fail to duly and timely file all material Tax returns required to be filed by it on or settle any claimafter the date hereof (which Tax returns shall be true, dispute, Liability or obligation that is not complete and correct in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiariesall material respects); (B) relinquish fail to timely withhold, collect, remit and pay all material Taxes which are to be withheld, collected, remitted or paid by it to the extent due and payable, except for any contractual rights that are, individually or Taxes contested in good faith pursuant to applicable Laws and for which adequate provision is made in the aggregate, in an amount in excess of $500,000Lexam VG Gold Financial Statements; (C) enter into make or rescind any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposesmaterial election relating to Taxes; (D) make a request for a Tax ruling, enter into a closing agreement with any Tax authorities or renew waive extending the period for assessment or allocation of Taxes; (E) settle or compromise any leasematerial claim, license action, suit, litigation, proceeding, arbitration, investigation, audit or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries controversy relating to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this AgreementTaxes; or (EF) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorizationof its methods of reporting income, leasedeductions or accounting for income tax purposes from those employed in the preparation of its income tax return for the tax year ending December 31, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions2015, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the abovemay be required by applicable Laws;
(xxxxi) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the any other transactions contemplated by this Arrangement Agreement or regarding the status of the Primero Property Lexam VG Gold Properties or the Primero Lexam VG Gold Mineral Rights) without the prior consent of Northgate ▇▇▇▇▇▇ Mining such consent not to be unreasonably withheld, and further agrees withheld or fail to provide Northgate ▇▇▇▇▇▇ Mining with immediate notice orally and then promptly in writing of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xixxxii) enter intofail to notify ▇▇▇▇▇▇ Mining immediately orally and then promptly in writing of any material change (within the meaning of the Securities Act) or of any complaint, investigation or cause hearing involving any Primero Subsidiaries Governmental Entity, Canadian Securities Administrator, U.S. Securities Administrator, stock exchange or other Person (or communications indicating that the same may be contemplated), in both cases in relation to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse EffectLexam VG Gold;
(xiixxxiii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salaryas permitted by this Arrangement Agreement, bonuses under its enter into any transaction or their existing bonus arrangements and directors’ fees in perform any act which might interfere with or be materially inconsistent with the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in successful completion of the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture Arrangement or any other bonustransactions contemplated by this Arrangement Agreement or which would render, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could which may reasonably be expected to be prejudicial render, untrue or inaccurate (without giving effect to, applying or taking into consideration any materiality or Material Adverse Effect qualification already contained within such representation or warranty) in any material respect at any time prior to Northgate’s interest the Effective Time Lexam VG Gold's representations and warranties set forth in the businessthis Arrangement Agreement; and
(xxxiv) announce an intention, property enter into any formal or assets of Primero informal agreement, or otherwise make a commitment to do any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required things prohibited by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreementforegoing subparagraphs.
Appears in 1 contract
Sources: Arrangement Agreement
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero 1267818 shall not, without the prior written consent of NorthgateValorem, which consent shall not be unreasonably withheld or delayedwithheld, directly or indirectly do or agree to do, or cause any of the Primero Subsidiaries its Subsidiaries, if any, to do or agree to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soon, or permit any of the Primero Subsidiaries a Subsidiary to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soon, any shares or other securities of1267818 Shares, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero or any of the Primero Subsidiaries, other than the issue of Primero Shares pursuant to the valid exercise of the Primero Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants1267818;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons)persons) or as required in the ordinary and regular course of business, sell, lease, encumber or otherwise dispose of, or permit any of the Primero Subsidiaries its Subsidiaries, if any, to sell, lease, encumber or otherwise dispose of, any material property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectassets;
(iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero or any of its Constating Documents except as necessary to permit the Primero Subsidiaries or any completion of the terms of the Primero Options and Primero Warrants as they exist at the date of this Agreement1267818 Acquisition;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, 1267818 Shares or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero Subsidiaries1267818 Shares;
(v) redeem, purchase or offer to purchase, or permit any of the Primero Subsidiaries 1267818 Subsidiaries, if any, to redeem, purchase or offer to purchase, any Primero 1267818 Shares and, other than pursuant to the Primero Stock Option Plan, and any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will other than as contemplated hereby, adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; in each case in or for a material amount, (CB) authorize, recommend or propose any release or relinquishment of any material contractual right; , (DC) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorizationlicense, lease, contract, production sharing agreement, government land concession or other material legal rights, claims or document; (ED) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; or (FE) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(xviii) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; , (B) expenditures required by Lawslaw; (C) expenditures made in connection with transactions contemplated in this Agreement; , and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xiiix) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements arrangements, and directors’ ' fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual normal course of business;
(xiiix) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, insurance, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as if it is necessary to comply with Laws the law or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xivxi) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s Valorem's interest in the businessBusiness, Assets or property or assets of Primero or any of the Primero Subsidiaries 1267818 and its Subsidiaries, if any, following the closing of the Arrangement; orAmalgamation;
(xvxii) except as required by Canadian GAAPtake any action, or refrain from taking any other generally accepted accounting principle action, or permit any action to be take or not taken, inconsistent with the provisions of this Agreement or which any would reasonably be expected to materially impede the completion of the Primero Subsidiaries may be subjecttransactions contemplated hereby or would render, or that could reasonably be expected to render, any applicable Laws, make representation or warranty made by 1267818 in this Agreement untrue or inaccurate in any changes material respect at any time prior to the existing accounting policies of Primero Effective Date if then made, or any of the Primero Subsidiaries which would or make could have a Material Adverse Effect on 1267818; and
(xiii) settle or compromise any material tax election inconsistent claim brought by any present, former or purported holder of any securities of 1267818 in connection with past practice other than as the transactions contemplated in by this AgreementAgreement prior to the Effective Date.
Appears in 1 contract
Sources: Acquisition Agreement
Certain Actions Prohibited. Other than as previously disclosed in the Primero Disclosure Letterby Iberian to PTQ, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this AgreementTransaction, Primero during the Interim Period, Iberian shall not, without the prior written consent of NorthgatePTQ, which such consent shall not to be unreasonably withheld or delayed, directly or indirectly do or cause any of the Primero Subsidiaries permit to do, occur any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grantpledge, lease, dispose of, or encumber or create any Encumbrance on, or permit the Iberian Subsidiaries to, issue, sell, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero of Iberian or any of the Primero Iberian Subsidiaries, other than the issue of Primero Shares pursuant to the valid exercise of the Primero Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereofincluding without limitation, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker WarrantsIberian Common Shares;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons), sell, lease, encumber lease or otherwise dispose of, or permit any of the Primero Iberian Subsidiaries to sell, lease, encumber lease or otherwise dispose of, any material property or assets or enter into any agreement or commitment in respect of any of the foregoing foregoing;
(iii) enter into, renew or modify in any respect any material contract, agreement, lease, commitment or arrangement to which Iberian or the Iberian Subsidiaries is a party or by which Iberian or the Iberian Subsidiaries is bound, except insofar as may be necessary to permit or provide for the completion of the Transaction or where to do so would not have a Material Adverse Effect;.
(iiiiv) amend or propose to amend the articles, notice of articles Articles or by-laws (or their equivalent equivalent) of Primero Iberian or any of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this AgreementIberian Subsidiaries;
(ivv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero Iberian Common Shares, or any of the Primero shares of the Iberian Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any Iberian of the Primero Iberian Subsidiaries;
(vvi) redeem, purchase or offer to purchase, or permit purchase any of the Primero Subsidiaries to redeem, purchase or offer to purchase, any Primero Shares and, other than pursuant to the Primero Stock Option Plan, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidationIberian Common Shares;
(vii) reorganize, amalgamate or merge Iberian or the Iberian Subsidiaries with any other Person;
(viii) acquire or agree to acquire any corporation, partnership (corporation or other entity (or material interest therein) or division of any corporation or other entity, or permit any of the Primero Iberian Subsidiaries to acquire or agree to acquire any corporation, partnership corporation or other entity (or material interest therein) or division of any corporation or other entity;
(viiiix) (A) satisfy or settle any claim, claim or dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate Iberian Financial Statements and which are, individually or in the aggregate, in an amount in excess of less than $500,000 100,000 or which constitutes a claim, dispute, Liability or obligation claim between Primero Iberian and any of the Primero Subsidiaries or between Primero Iberian Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000100,000; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the aboveinstruments;
(x) initiate any material discussionincur, negotiations authorize, agree or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees otherwise become committed to provide Northgate with immediate notice of guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any material communication (whether oral indebtedness for borrowed money, or written) from a Governmental Entitypermit the Iberian Subsidiaries to provide guarantees for borrowed money or to incur, including a copy of authorize, agree or otherwise become committed for any written communication;indebtedness for borrowed money; or
(xi) enter into, or cause any Primero the Iberian Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: than (A) ordinary course expenditures; (B) expenditures required by Lawslaw; and (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this AgreementTransaction.
Appears in 1 contract
Certain Actions Prohibited. Other than as disclosed in Section 4.2(f) of the Primero Leagold Disclosure Letter, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero Leagold shall not, without the prior written consent of Northgate, which consent shall not be unreasonably withheld or delayedBrio, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries to do, any of the following, following except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Lawsbusiness:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance Lien on or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grantpledge, lease, dispose of, or encumber or create any Lien on, or permit its subsidiaries to issue, sell, pledge, lease, dispose of, encumber or create any Encumbrance Lien on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Lien on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Leagold or any of the Primero Subsidiariesits subsidiaries, other than the issue of Primero Leagold Shares pursuant to the valid exercise or conversion, as the case may be, of the Primero Options and Primero Warrants Leagold Options, Leagold DSUs, Leagold Warrants, convertible or exchangeable securities or other rights to acquire Leagold Shares, all as issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Personspersons), encumber, create any Lien on, sell, leaselease or otherwise dispose of, encumber or permit its subsidiaries to encumber, create any Lien on, sell, lease or otherwise dispose of, or permit any of the Primero Subsidiaries its subsidiaries to sell, lease, encumber lease or otherwise dispose of, any property (including the Leagold Properties) or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articlesNotice of Articles, notice of articles Articles or by-laws (or their equivalent equivalent) of Primero Leagold or any of the Primero Subsidiaries or any of its subsidiaries other than to give effect to the terms of the Primero Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine consolidate or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesLeagold;
(v) redeem, purchase or offer to purchase, or permit any of the Primero Subsidiaries to redeem, purchase or offer to purchase, any Primero Shares and, other than pursuant to the Primero Stock Option Plan, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (corporation or other entity (or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries its subsidiaries to acquire or agree to acquire any corporation, partnership corporation or other entity (or material interest therein) or division of any corporation or other entity;
(viiivi) (A) satisfy or settle any claim, dispute, Liability claim or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, dispute individually or in the aggregate, in an amount in excess of $500,000 1,000,000, except such as have been included in the consolidated financial statements of Leagold, or which constitutes a claim, dispute, Liability or obligation claim between Primero Leagold and any of the Primero Subsidiaries a Leagold subsidiaries or between Primero Subsidiariessubsidiaries of Leagold; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,0001,000,000; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; ;
(D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (Evii) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero required by IFRS or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate other generally accepted accounting principle to which any Leagold’s subsidiaries may be subject or any applicable Law, make any changes to the existing accounting practices of the Northgate Subsidiaries that involves Leagold or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contractmake any material tax election inconsistent with past practice;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xiviii) enter into, or cause any Primero Subsidiaries of its subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: than (A) expenditures in the ordinary course expendituresof business; (B) expenditures required by LawsLaw; and (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xvix) except as required by Canadian GAAPenter into or amend any financial or other material agreements with its principal shareholders, including Goldcorp and Orion, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, its directors or any applicable Laws, make any changes to the existing accounting policies of Primero officers or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreementtheir respective affiliates.
Appears in 1 contract
Sources: Arrangement Agreement
Certain Actions Prohibited. Other than as disclosed in the Primero Northgate Disclosure Letter, or in contemplation of, as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero Northgate shall not, without the prior written consent of NorthgatePrimero, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause any of the Primero Northgate Subsidiaries to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of NorthgatePrimero, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Northgate Subsidiaries to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Northgate or any of the Primero Northgate Subsidiaries, other than the issue of Primero Northgate Shares pursuant to the valid exercise of the Primero Northgate Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons), sell, lease, encumber or otherwise dispose of, or permit any of the Primero Northgate Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effect;
(iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero Northgate or any of the Primero Northgate Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero Subsidiaries;
(v) redeem, purchase or offer to purchase, or permit any of the Primero Subsidiaries to redeem, purchase or offer to purchase, any Primero Shares and, other than pursuant to the Primero Stock Option Plan, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 1 contract
Certain Actions Prohibited. Other than as disclosed set out in the Primero Nova Disclosure LetterLetter or otherwise herein, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this AgreementTransaction, Primero Nova shall not, without the prior written consent of Northgate, which Allana (such consent shall not to be unreasonably withheld or delayedwithheld), directly or indirectly indirectly, do or cause any of the Primero Subsidiaries permit to do, occur any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, allot, reserve, set aside, authorize, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, allot, reserve, set aside, authorize, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, or permit any of the Primero Subsidiaries Nova Subsidiary to issue, allot, reserve, set aside, authorize, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, allot, reserve, set aside, authorize, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges Convertible Securities or rights of any kind to acquire any shares of, Primero Nova or any of the Primero SubsidiariesNova Subsidiary, including without limitation, the Nova Common Shares, other than the issue of Primero Nova Common Shares pursuant to the valid exercise of the Primero Nova Options and Primero Warrants or other rights issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons), sell, lease, encumber lease or otherwise dispose of, or allow any Encumbrance on, or permit any of the Primero Subsidiaries Nova Subsidiary to sell, lease, encumber lease or otherwise dispose of, or allow any Encumbrance on, any material property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectoutside of the ordinary course of business;
(iii) amend or propose to amend the articles, notice memorandum and articles of articles association or by-by- laws (or their equivalent equivalent) of Primero Nova or any of the Primero Subsidiaries Nova Subsidiary or any of the terms of the Primero Nova Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capitalsplit, or splitdivide, combine or reclassify any of the shares or other securities of Primero Nova Common Shares or any of the Primero Subsidiariesshares of the Nova Subsidiary, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Nova Common Shares or the any shares of any of the Primero SubsidiariesNova Subsidiary;
(v) redeem, purchase or offer to purchase, or permit any of the Primero Subsidiaries Nova Subsidiary to redeem, purchase or offer to purchase, any Primero Nova Common Shares and, other than pursuant with respect to the Primero Stock Option PlanNova Options outstanding as at the date hereof, any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any except as provided under the terms of the Primero Subsidiaries will Nova Options and the Plan of Merger with respect to a change of control as a result of the Transaction, whether through its board of directors or otherwise, accelerate the vesting of any unvested Nova Options, or otherwise amend, vary or modify any Nova Options;
(vii) reduce its stated capital or repay any indebtedness for borrowed money before it is due;
(viii) adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, Nova or the Nova Subsidiary or adopt any plan of liquidation;
(viiix) acquire or agree to acquire any corporation, partnership (corporation or other entity (or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries Nova Subsidiary to acquire or agree to acquire any corporation, partnership corporation or other entity (or material interest therein) or division of any corporation or other entity;
(viiix) (A) satisfy or settle any claim, claim or dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate Nova Financial Statements and which are, individually or in the aggregate, in an amount in excess of $500,000 Nova Disclosure Letter or which constitutes a claim, dispute, Liability or obligation claim between Primero Nova and any of the Primero Subsidiaries or between Primero SubsidiariesNova Subsidiary; (B) grant any waiver, exercise any option or relinquish any contractual rights that are, individually rights; or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments instruments;
(xi) incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money, or permit any of Nova or the Nova Subsidiary to incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money;
(xii) except as required by IFRS, any other than in generally accepted accounting principles to which Nova or the ordinary and regular course Nova Subsidiary may be subject or any applicable Law, make any changes to the existing accounting practices of business and not for speculative purposes; Nova or make any material tax election, file any amended Tax Return, settle or compromise any Tax liability, agree to an extension or waiver of the limitation period with respect to the assessment, reassessment or determination of Taxes, enter into any closing agreement with respect to any Tax or surrender any right to claim a Tax refund;
(Dxiii) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage modify in any type of activity material respect any agreements or business, (b) arrangements or take any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) other action that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contracthave a Material Adverse Effect on Nova;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (Exiv) enter into or terminate amend any ▇▇▇▇▇▇agreements, swaps arrangements or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreementtransactions with any related entity; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;or
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xixv) enter into, or cause any Primero Subsidiaries of Nova or the Nova Subsidiary to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: than (A) ordinary course expendituresexpenditures for budgeted expenditures as disclosed in writing to Allana; (B) expenditures required by Lawslaw; (C) expenditures made in connection with transactions contemplated in this Agreementthe Transaction; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations such expenses that have been jointly approved by Allana and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this AgreementNova.
Appears in 1 contract
Sources: Merger Agreement
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, of or as required to give effect to the transactions Arrangement or the Transactions contemplated by this Agreement herein or as permitted under this Agreementrequired by applicable Laws or any Governmental Entities, Primero Coretec shall not (and shall ensure that its Subsidiaries do not), without the prior written consent of Northgate, which consent shall not be unreasonably withheld or delayedDDi, directly or indirectly do or cause any of the Primero Subsidiaries permit to do, occur any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, or permit any of the Primero Subsidiaries a Coretec Subsidiary to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Coretec or any of the Primero its Subsidiaries, other than the issue of Primero up to 1,382,500 Common Shares pursuant to the valid exercise of the Primero Coretec Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant in the ordinary and regular course of business consistent with past practice, in respect of rights, properties or assets that are not, either individually or in the aggregate, material to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons)Coretec, sell, lease, encumber lease or otherwise dispose of, or permit any of the Primero Coretec Subsidiaries to sell, lease, encumber lease or otherwise dispose of, any material property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articles, notice of articles or by-laws (or their equivalent equivalent) of Primero Coretec or any of its Subsidiaries or, except as set out in the Primero Subsidiaries or Coretec Disclosure Letter, any of the terms of the Primero Coretec Options and Primero Warrants or Coretec DSUs as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero Coretec or any of the Primero Coretec Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesCommon Shares;
(v) redeem, purchase or offer to purchase, purchase or permit any of the Primero Coretec Subsidiaries to redeem, purchase or offer to purchase, any Primero Common Shares and, other than pursuant to the Primero Stock Coretec Share Option PlanPlans, any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor reorganize, amalgamate or merge Coretec or any of the Primero its Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or with any other extraordinary transaction in respect of itself, or adopt any plan of liquidationperson other than another Coretec Subsidiary;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability material claims or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and disputes which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiariesaggregate material to Coretec; (B) relinquish any material contractual rights that which are, individually or in the aggregate, in an amount in excess of $500,000aggregate material to Coretec; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) except as set out in the Coretec Disclosure Letter or with the prior written consent of DDi (A) acquire any material assets; (B) incur not to be unreasonably withheld), incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, in excess of $50,000 in the obligations of any other individual or entityaggregate, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the aboveCoretec Subsidiaries to incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries Coretec Subsidiary may be subject, subject or any applicable Laws, make any changes to the existing accounting policies practices of Primero or any of the Primero Subsidiaries Coretec or make any material tax election inconsistent with past practice other than as contemplated in this Agreementpractice; or
(xi) agree or commit to do any of the foregoing.
Appears in 1 contract
Sources: Arrangement Agreement (Ddi Corp)
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement Transaction or as permitted under this Agreementrequired by applicable Law, Primero shall notneither HPB nor Subco shall, without the prior written consent of Northgate, which Bradstone (such consent shall not to be unreasonably withheld or delayedwithheld), directly or indirectly indirectly, do or cause any of the Primero Subsidiaries permit to do, occur any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges Convertible Securities or rights of any kind to acquire any shares of, Primero or any of the Primero Subsidiaries, other than the issue of Primero Shares pursuant to the valid exercise of the Primero Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker WarrantsHPB;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been or may be exercised or initiated by other Persons), sell, lease, encumber or otherwise dispose of, or permit any of the Primero Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectoutside of the ordinary course of business;
(iii) amend or propose to amend the articles, notice of articles or by-laws (or their equivalent equivalent) of Primero or any of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this AgreementHPB;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, HPB Shares or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesHPB Shares;
(v) redeem, purchase or offer to purchase, purchase any HPB Shares and any options or permit any of the Primero Subsidiaries to redeem, purchase or offer to purchase, any Primero Shares and, other than pursuant to the Primero Stock Option Plan, any other securities obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the reorganization, amalgamation, arrangement, merger, consolidation, reorganization, liquidation, liquidation or dissolution of HPB or Subco with any other Person or any other extraordinary transaction in respect of itselfHPB, Subco or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business obligation, except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero SubsidiariesHPB Financial Statements; (B) grant any waiver, exercise any option or relinquish any contractual rights that are, individually rights; or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; instruments;
(Dix) enter into or renew amend any leaseagreements, license arrangements or other binding obligation of Primero transactions with any related entity; or
(x) enter into or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage modify in any type of activity material respect any agreements or business, (b) amalgamations or take any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) other action that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of have a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 1 contract
Sources: Amalgamation Agreement
Certain Actions Prohibited. Other than as disclosed in the Primero Northgate Disclosure Letter, or in contemplation of, as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero Northgate shall not, without the prior written consent of NorthgatePrimero, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause any of the Primero Northgate Subsidiaries to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of NorthgatePrimero, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Northgate Subsidiaries to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Northgate or any of the Primero Northgate Subsidiaries, other than the issue of Primero Northgate Shares pursuant to the valid exercise of the Primero Northgate Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons), sell, lease, encumber or otherwise dispose of, or permit any of the Primero Northgate Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effect;
(iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero Northgate or any of the Primero Northgate Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero Northgate or any of the Primero Northgate Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Northgate Shares or the shares of any of the Primero Northgate Subsidiaries;
(v) redeem, purchase or offer to purchase, or permit any of the Primero Northgate Subsidiaries to redeem, purchase or offer to purchase, any Primero Northgate Shares and, other than pursuant to the Primero Northgate Stock Option Plan, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero Northgate nor any of the Primero Northgate Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 1 contract
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero IMA shall not, without the prior written consent of NorthgateKobex and Barytex which consent shall not be unreasonably withheld, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or permit to occur, or cause any of the Primero IMA Subsidiaries to do, do any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, grant, pledge, lease, dispose of, or encumber or create any Encumbrance on, or permit any of the Primero Subsidiaries a IMA Subsidiary to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, grant, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero IMA or any of the Primero IMA Subsidiaries, other than the issue of Primero IMA Common Shares pursuant to the valid exercise of the Primero IMA Options and Primero the IMA Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons), sell, lease, encumber or otherwise dispose of, or permit any of the Primero IMA Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effect;
(iii) amend or propose to amend the articlesNotice of Articles, notice of articles Articles or by-laws or their equivalent of Primero IMA or any of the Primero IMA Subsidiaries or any of the terms of the Primero IMA Options and Primero or IMA Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero IMA or any of the Primero IMA Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero IMA Common Shares or the shares of any of the Primero IMA Subsidiaries;
(v) redeem, purchase or offer to purchase, or permit any of the Primero IMA Subsidiaries to redeem, purchase or offer to purchase, any Primero IMA Common Shares and, other than pursuant to the Primero IMA Stock Option Plan, any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership partnership, business corporation (or other entity or material interest therein) or division of any corporation or other entity, or make any investment or permit any of the Primero IMA Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entityentity or make any investment;
(viii) (A) satisfy or settle any claim, claim or dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate IMA and which are, individually or in the aggregate, in an amount in excess of $500,000 50,000 or which constitutes a claim, dispute, Liability or obligation claim between Primero IMA and any of the Primero Subsidiaries a IMA Subsidiary or between Primero IMA Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,00050,000; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; , (B) incur any indebtedness for borrowed money or any other material Liability liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; advances (C) authorize, recommend or propose any release or relinquishment of any material contractual right; , (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorizationlicense, lease, contract, production sharing agreement, government land concession or other material legal rightsdocument, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; , or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, into new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: than (A) ordinary course expenditures; , (B) expenditures required by Laws; law, (C) expenditures made in connection with transactions contemplated in this Agreement; , and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xiixi) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiiixii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, insurance, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws the law or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xivxiii) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s the interest of the Kobex Shareholders and the Barytex Shareholders in the business, property or assets of Primero or any of the Primero Subsidiaries IMA and its subsidiaries following the closing of the ArrangementArrangements; or
(xvxiv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries IMA Subsidiary may be subject, subject or any applicable LawsLaw, make any changes to the existing accounting policies practices of Primero or any of the Primero Subsidiaries IMA or make any material tax election inconsistent with past practice other than as contemplated in this Agreementpractice.
Appears in 1 contract
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero or in the Silver Quest Disclosure Letter, Silver Quest shall not, without the prior written consent of Northgate, which consent shall not be unreasonably withheld or delayedNew Gold, directly or indirectly do or cause any of the Primero Subsidiaries permit to do, occur any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grantor agree to issue or sell, any Silver Quest Common Shares or any options, warrants, calls, conversion privileges or rights of any kind to acquire any Silver Quest Common Shares, create any Encumbrance on the shares of any Silver Quest Subsidiary, or permit any Silver Quest Subsidiary to issue, sell, or agree to issue, sell, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero or of any of the Primero Subsidiaries, Silver Quest Subsidiary; other than the issue of Primero Silver Quest Common Shares pursuant to the valid exercise of the Primero Silver Quest Options and Primero the Silver Quest Warrants issued and outstanding on the date hereof of this Agreement in accordance with their terms as of the date hereof, of this Agreement or as otherwise disclosed in the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker WarrantsSilver Quest Disclosure Letter;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other PersonsPersons and only if such rights have been disclosed in the Silver Quest Disclosure Letter), sell, lease, encumber lease or otherwise dispose of, or permit any of the Primero Subsidiaries Silver Quest Subsidiary to sell, lease, encumber lease or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articles, its articles or notice of articles (or by-laws or their equivalent the equivalent) of Primero Silver Quest or any of the Primero Subsidiaries or Silver Quest Subsidiary or, except as contemplated herein, any of the terms of the Primero Silver Quest Options and Primero or the outstanding Silver Quest Warrants as they exist at the date of this Agreementexisted on October 16, 2011;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero Silver Quest or any of the Primero Subsidiaries, shares of any Silver Quest Subsidiary or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares shares of Silver Quest or the any shares of any of the Primero SubsidiariesSilver Quest Subsidiary;
(v) redeem, purchase or offer to purchase, or permit any of the Primero Subsidiaries Silver Quest Subsidiary to redeem, purchase or offer to purchase, any Primero Silver Quest Common Shares and, other than pursuant to the Primero Stock Silver Quest Option Plan, any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions reorganize, amalgamate or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution merge Silver Quest or any other extraordinary transaction in respect of itself, or adopt any plan of liquidationSilver Quest Subsidiary;
(vii) acquire or agree to acquire any corporation, partnership (corporation or other entity (or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries Silver Quest Subsidiary to acquire or agree to acquire any corporation, partnership corporation or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability claim or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and dispute which areis, individually or in the aggregate, in an amount in excess of $500,000 50,000, except such as have been included in Silver Quest Financial Statements delivered to New Gold or which constitutes a claim, dispute, Liability or obligation claim between Primero Silver Quest and any of the Primero Subsidiaries or between Primero SubsidiariesSilver Quest Subsidiary; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,00050,000; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or any other material Liability indebtedness for borrowed money, or obligation or issue permit any debt securities or assumeSilver Quest Subsidiary to incur, guaranteeauthorize, endorse agree or otherwise as an accommodation become responsible for, the obligations of committed to provide guarantees for borrowed money or any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except indebtedness for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the aboveborrowed money;
(x) initiate except as required by IFRS or any applicable Law, make any changes to the existing accounting practices of Silver Quest or make any material discussion, negotiations or filings tax election inconsistent with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;past practice; or
(xi) enter into, or cause any Primero Subsidiaries Silver Quest Subsidiary to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) expenditures made in the ordinary course expendituresof business consistent with past practice including budgeted expenditures as disclosed in writing to New Gold of less than $50,000; (B) expenditures required by LawsLaw; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations such expenses as have been jointly approved by Silver Quest and liabilities to pay any amountNew Gold, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreementacting reasonably.
Appears in 1 contract
Certain Actions Prohibited. Other than as disclosed in the Primero Alamos Disclosure Letter, or in contemplation of, as required to give effect to the transactions or expressly permitted or specifically contemplated by this Agreement or as permitted under this Agreement, Primero Alamos shall not, without the prior written consent of NorthgateAuRico, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause or permit any of the Primero Alamos Subsidiaries to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of NorthgateAuRico, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Alamos Subsidiaries to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Alamos or any of the Primero Alamos Subsidiaries, other than the issue of Primero Alamos Shares pursuant to in accordance with the valid exercise of the Primero Alamos Options and Primero Alamos Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, hereof or as required by the conversion by Primero Alamos DRIP or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker WarrantsAlamos ESPP;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons), sell, lease, encumber or otherwise dispose of, or permit any of the Primero Alamos Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articles, notice of articles or articles, by-laws or other constating documents or their equivalent of Primero Alamos or any of the Primero Alamos Subsidiaries or any of the terms of the Primero Options and Primero Alamos Options, Alamos SARs, Alamos DSUs, Alamos RSUs, Alamos Warrants or Alamos SERP as they exist at the date of this Agreement;;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero Alamos or any of the Primero Alamos Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Alamos Shares or the shares of any of the Primero SubsidiariesAlamos Subsidiaries (other than quarterly or semi-annual cash dividends in respect of the Alamos Shares not exceeding the cash dividends paid in the ordinary course of business of Alamos);
(v) redeem, purchase or offer to purchase, or permit any of the Primero Alamos Subsidiaries to redeem, purchase or offer to purchase, any Primero Alamos Shares and, other than pursuant to the Primero Alamos Stock Option PlanPlan and Alamos Warrant Indenture, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor take any action that would result in any amendment, modification, or change of any term of any Financial Indebtedness by Alamos or any of the Primero Alamos Subsidiaries;
(vii) adopt, nor permit any of the Alamos Subsidiaries will adopt to adopt, any resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(viiviii) acquire or agree to acquire any corporation, partnership (or other entity Person (or material interest therein) or division of any corporation or other entity, or permit any of the Primero Alamos Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity Person (or material interest therein) or division of any corporation or other entity;
(viiiix) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business business, except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, for any Liability or obligation between Primero Alamos and any of the Primero Alamos Subsidiaries or between Primero Alamos Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,0005,000,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license licence or other binding obligation of Primero Alamos or any of the Primero Alamos Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero Alamos or any of the Primero Alamos Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Amalco or any of its Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero Alamos or any of the Primero Alamos Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate Amalco or any of the Northgate its Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero Alamos or any of the Primero Alamos Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate Amalco or any of the Northgate subsidiariesits Subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or for in Primero’s budgetthe Alamos Disclosure Letter, not enter into or renew any agreement, contract, lease, license licence or other binding obligation of Primero Alamos or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Alamos Subsidiaries that involves or would reasonably be expected to involve aggregate payments in excess of $500,000 in the aggregate over the term of the contractcontract in excess of $10,000,000;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entityPerson, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(xxi) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Alamos Property or the Primero Alamos Mineral Rights) without the prior consent of Northgate AuRico such consent not to be unreasonably withheld, and further agrees agrees, subject to applicable Law, to provide Northgate AuRico with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xixii) enter into, or cause any Primero Alamos Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xiixiii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for ordinary course salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiiixiv) adopt or amend or make any material contribution to the Primero any Alamos Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture Alamos Incentive Compensation Plan or to any other bonus, profit sharing, option, retention, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with applicable Laws or with respect the terms of such plans, programs, arrangements or agreements where the failure to existing provisions so comply would result in a material breach of any such plans, programs, arrangements or agreements;
(xivxv) take actions or fail to take any action that could reasonably be expected to be prejudicial to NorthgateAmalco’s interest in the business, property or assets of Primero Alamos or any of the Primero Alamos Subsidiaries following the closing of the Arrangement;
(xvi) acquire any securities of AuRico or any option, rights or entitlements to acquire any securities of AuRico or enter into any commitment or agreement to do any of the foregoing; or
(xvxvii) except as required by Canadian GAAP, IFRS or any other generally accepted accounting principle to which any of the Primero Alamos Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero Alamos or any of the Primero Alamos Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 1 contract
Certain Actions Prohibited. Other than as disclosed set out in the Primero NWT Disclosure Letter, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this AgreementTransaction and, Primero except where doing so would not have a Material Averse Effect on NWT, NWT shall not, without the prior written consent of NorthgateNu-Mex, which such consent shall not to be unreasonably withheld or delayed, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries to do, any of the following, following except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, or permit any of the Primero Subsidiaries NWT Subsidiary to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero NWT or any either of the Primero NWT Subsidiaries, including without limitation, the NWT Common Shares, other than the issue of Primero NWT Common Shares pursuant to the valid exercise of the Primero NWT Options and Primero or NWT Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons)Persons in accordance with their terms) or as set forth in the NWT Disclosure Letter, sell, lease, encumber lease or otherwise dispose of, or permit any either of the Primero NWT Subsidiaries or the NWT Significant Interest Company to sell, lease, encumber lease or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articles, notice of articles or by-laws (or their equivalent equivalent) of Primero NWT or any either of the Primero NWT Subsidiaries or the NWT Significant Interest Company, the NWT Option Plan or any of the terms of the Primero NWT Options and Primero NWT Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero NWT Common Shares or any of the Primero Subsidiariesshares of the NWT Subsidiaries or the NWT Significant Interest Company, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares shares of NWT or either of the NWT Subsidiaries or the shares of any of the Primero SubsidiariesNWT Significant Interest Company;
(v) redeem, purchase or offer to purchase, or permit any either of the Primero NWT Subsidiaries or the NWT Significant Interest Company to redeem, purchase or offer to purchase, any Primero NWT Common Shares and, other than pursuant to the Primero Stock NWT Option Plan, any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any reorganize, amalgamate or merge NWT or either of the Primero NWT Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or NWT Significant Interest Company with any other extraordinary transaction in respect of itself, or adopt any plan of liquidationPerson;
(vii) acquire or agree to acquire any corporation, partnership (corporation or other entity (or material interest therein) or division of any corporation or other entity, or permit any either of the Primero NWT Subsidiaries or the NWT Significant Interest Company to acquire or agree to acquire any corporation, partnership corporation or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, claim or dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate NWT Financial Statements or as set forth in the NWT Disclosure Letter and which are, individually or in the aggregate, in an amount in excess of $500,000 50,000 or which constitutes a claim, dispute, Liability claim between NWT and a NWT Subsidiary or obligation between Primero and any of the Primero Subsidiaries NWT Significant Interest Company or between Primero NWT Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,00050,000; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contractinstruments;
(ix) (A) acquire any material assets; (B) incur incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money, or permit either of the NWT Subsidiaries or the NWT Significant Interest Company to incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or any other material Liability or obligation or issue any debt securities or assumeincur, guaranteeauthorize, endorse agree or otherwise as an accommodation become responsible for, the obligations of committed for any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except indebtedness for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the aboveborrowed money;
(x) initiate except as required by Canadian GAAP, any other generally accepted accounting principle to which any NWT Subsidiary or the NWT Significant Interest Company may be subject or any applicable Law, make any changes to the existing accounting practices of NWT or make any material discussion, negotiations or filings tax election inconsistent with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;past practice; or
(xi) enter into, or cause any Primero either of the NWT Subsidiaries or the NWT Significant Interest Company to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: than (A) ordinary course expenditures; (B) expenditures required by Lawslaw; and (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this AgreementTransaction.
Appears in 1 contract
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or Except in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero Barytex shall not, without the prior written consent of Northgate, IMA which consent shall not be unreasonably withheld or delayedunreasonable withheld, directly or indirectly do or cause any of the Primero Barytex Subsidiaries to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, grant, pledge, lease, dispose of, or encumber or create any Encumbrance on, or permit any of the Primero Subsidiaries a Barytex Subsidiary to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, grant, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Barytex or any of the Primero Barytex Subsidiaries, other than the issue of Primero Barytex Common Shares pursuant to the valid exercise of the Primero Barytex Options and Primero Barytex Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons), sell, lease, encumber or otherwise dispose of, or permit any of the Primero Barytex Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effect;
(iii) amend or propose to amend the articlesNotice of Articles, notice of articles Articles or by-laws or their equivalent of Primero Barytex or any of the Primero Barytex Subsidiaries or any of the terms of the Primero Barytex Options and Primero Barytex Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero Barytex or any of the Primero Barytex Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Barytex Common Shares or the shares of any of the Primero Barytex Subsidiaries;
(v) redeem, purchase or offer to purchase, or permit any of the Primero Barytex Subsidiaries to redeem, purchase or offer to purchase, any Primero Barytex Common Shares and, other than pursuant to the Primero Barytex Stock Option Plan, any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership partnership, business corporation (or other entity or material interest therein) or division of any corporation or other entity, or make any investment or permit any of the Primero Barytex Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entityentity or make any investment;
(viii) (A) satisfy or settle any claim, claim or dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate Barytex and which are, individually or in the aggregate, in an amount in excess of $500,000 50,000 or which constitutes a claim, dispute, Liability or obligation claim between Primero Barytex and any of the Primero Subsidiaries a Barytex Subsidiary or between Primero Barytex Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,00050,000; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; , (B) incur any indebtedness for borrowed money or any other material Liability liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; advances (C) authorize, recommend or propose any release or relinquishment of any material contractual right; , (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorizationlicense, lease, contract, production sharing agreement, government land concession or other material legal rightsdocument, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; , or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, into new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: than (A) ordinary course expenditures; , (B) expenditures required by Laws; law, (C) expenditures made in connection with transactions contemplated in this Agreement; , and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xiixi) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiiixii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, insurance, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws the law or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xivxiii) take actions or fail to take any action that could reasonably be expected to be prejudicial to NorthgateIMA’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries Barytex and its subsidiaries following the closing of the Barytex Arrangement; or
(xvxiv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries Barytex Subsidiary may be subject, subject or any applicable LawsLaw, make any changes to the existing accounting policies practices of Primero or any of the Primero Subsidiaries Barytex or make any material tax election inconsistent with past practice other than as contemplated in this Agreementpractice.
Appears in 1 contract
Certain Actions Prohibited. Other than as disclosed by Corporation in the Primero Corporation Disclosure Letter, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero Corporation shall not, without the prior written consent of Northgate, which consent shall not be unreasonably withheld or delayedOfferor, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries to do, any of the following, following except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grantor agree to issue, sell, any Corporation Common Shares or any options, warrants, calls, conversion privileges or rights of any kind to acquire any Corporation Common Shares, create any Encumbrance on the shares of the Corporation Subsidiary, or permit any Corporation Subsidiary to issue, sell, or agree to issue, sell, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero or any of the Primero Subsidiaries, a Corporation Subsidiary; other than the issue of Primero Corporation Common Shares pursuant to the valid exercise of the Primero Corporation Options and Primero Corporation Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Personspersons), sell, lease, encumber lease or otherwise dispose of, or permit any of the Primero Subsidiaries Corporation Subsidiary to sell, lease, encumber lease or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero Corporation or any of the Primero Subsidiaries Corporation Subsidiary or any of the terms of the Primero Corporation Options and Primero or the outstanding Corporation Warrants as they exist at the date of this AgreementAgreement provided, however, that the directors of Corporation shall be entitled to, in accordance with the terms of the Corporation Option Plan, to amend the termination provisions of the outstanding Corporation Options to provide that they will not terminate on the 90th day following the date the holder of such Corporation Option ceases to be a director, employee or consultant of Corporation but, instead, shall expire on the earlier of the expiry date of such Corporation Option or the date that is 12 months from the Effective Date;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares of Corporation or other securities of Primero or any of the Primero Subsidiaries, Corporation Subsidiary or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesCorporation or a Corporation Subsidiary;
(v) redeem, purchase or offer to purchase, or permit any of the Primero Subsidiaries Corporation Subsidiary to redeem, purchase or offer to purchase, any Primero Corporation Common Shares and, other than pursuant to the Primero Stock Corporation Option Plan, any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions reorganize, amalgamate or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution merge Corporation or any other extraordinary transaction in respect of itself, or adopt any plan of liquidationCorporation Subsidiary;
(vii) acquire or agree to acquire any corporation, partnership (corporation or other entity (or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries Corporation Subsidiary to acquire or agree to acquire any corporation, partnership corporation or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, claim or dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero Corporation delivered to Northgate Offeror and which are, individually or in the aggregate, in an amount in excess of $500,000 50,000 or which constitutes a claim, dispute, Liability or obligation claim between Primero and any of the Primero Subsidiaries or between Primero SubsidiariesCorporation a Corporation Subsidiary; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,00050,000; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money, or permit any Corporation Subsidiary to incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or any other material Liability or obligation or issue any debt securities or assumeincur, guaranteeauthorize, endorse agree or otherwise as an accommodation become responsible for, the obligations of committed for any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except indebtedness for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the aboveborrowed money;
(x) initiate except as required by Canadian GAAP or any applicable Law, make any changes to the existing accounting practices of Corporation or make any material discussion, negotiations or filings tax election inconsistent with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communicationpast practice;
(xi) approve any plan, program or budget for the Corporation or amend or revise any existing plan, program or budget for the Corporation including, but not limited to, the current budget, the social and permitting program or the drill program.
(xii) incur or commit to incur any expenditure for an amount in excess of $100,000;
(xiii) enter into, or cause any Primero Subsidiaries Corporation Subsidiary to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: than (A) ordinary course expenditures; (B) expenditures required by LawsLaw; and (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions make any Tax election, change any method of Tax accounting or fail to take settle or compromise any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets Tax liability of Primero Corporation or any of the Primero Subsidiaries following Corporation Subsidiaries, and, in any event, the closing Corporation shall consult with Offeror before filing or causing to be filed any Tax Return of Corporation or any of the ArrangementCorporation Subsidiaries and before executing or causing to be executed any agreement or waiver extending the period for assessment or collection of any Taxes of the Corporation or the Corporation Subsidiaries; or
(xv) except as required by Canadian GAAP, knowingly take any action or any other generally accepted accounting principle knowingly permit inaction that would have the effect of preventing the Offeror from obtaining a full tax cost “bump” pursuant to which any paragraph 88(1)(d) of the Primero Subsidiaries may be subjectTax Act, or any applicable Lawsif applicable, make any changes to the existing accounting policies of Primero or any in respect of the Primero Subsidiaries shares of any affiliates or make any material tax election inconsistent with past practice subsidiaries and other than as contemplated in non-depreciable capital property directly owned by Corporation on the date of this Agreement.
Appears in 1 contract
Sources: Business Combination Agreement (Pediment Gold Corp.)
Certain Actions Prohibited. Other than as disclosed set out in the Primero Nu-Mex Disclosure Letter, Letter or in contemplation of, as required to give effect to the transactions contemplated by this Agreement or as permitted under this AgreementTransaction and, Primero except where doing so would not have a Material Adverse Effect on Nu-Mex, Nu-Mex shall not, without the prior written consent of NorthgateNWT, which consent shall is not to be unreasonably withheld or delayed, directly or indirectly do or cause any of the Primero Subsidiaries permit to do, occur any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) take any action, or refrain from taking any action (subject to commercially reasonable best efforts), or permit any action to be taken or not taken, inconsistent with the provisions of this Agreement or which would reasonably be expected to materially impede the completion of the Transaction or would render, or that could reasonably be expected to render, any representation or warranty made by Nu-Mex in this Agreement untrue or inaccurate in any material respect at any time prior to the Effective Time if then made or that would or could have a Material Adverse Effect on Nu-Mex, provided that Nu-Mex may take any such action or refrain from taking such action (subject to commercially reasonable best efforts) as a result of this Agreement, in the event Nu-Mex immediately notifies NWT in writing of such circumstances;
(ii) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grant, pledge, lease, dispose of, or encumber or create any Encumbrance on or agree to do soon, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero or any of the Primero Subsidiaries, other than the issue of Primero Shares pursuant to the valid exercise of the Primero Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker WarrantsNu-Mex;
(iiiii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons)Persons in accordance with their terms) or as set forth in the Nu-Mex Disclosure Letter, sell, lease, encumber or otherwise dispose of, or permit any of the Primero Subsidiaries to sell, lease, encumber lease or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iiiiv) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero or any Nu-Mex (it being acknowledged that with the consent of NWT, the Nu-Mex charter documents must change in accordance with the requirements of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this AgreementToronto Stock Exchange);
(ivv) reduce its stated capital, or split, combine or reclassify any of the shares Nu-Mex Common Shares or other securities of Primero declare or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesNu-Mex Common Shares;
(vvi) redeem, purchase or offer to purchase, or permit purchase any of the Primero Subsidiaries to redeem, purchase or offer to purchase, any Primero Shares and, other than pursuant to the Primero Stock Option Plan, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidationNu-Mex Common Shares;
(vii) reorganize, amalgamate or merge Nu-Mex with any other Person;
(viii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viiiix) (A) satisfy or settle any claim, claim or dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate Nu-Mex Financial Statements or as set forth in the Nu-Mex Disclosure Letter and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries50,000; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,00050,000; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the aboveinstruments;
(x) initiate any material discussionincur, negotiations authorize, agree or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees otherwise become committed to provide Northgate with immediate notice of guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communicationindebtedness for borrowed money;
(xi) except as required by U.S. GAAP or any applicable Law, make any changes to the existing accounting practices of Nu-Mex or make any material tax election inconsistent with past practice; or
(xii) enter into, or cause any Primero Subsidiaries to enter into, into new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: than (A) ordinary course expenditures; (B) expenditures required by LawsLaw; and (C) expenditures made in connection with transactions contemplated in this Agreementthe Transaction; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;or
(xiii) adopt agree or amend or make any contribution commit to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or do any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreementforegoing.
Appears in 1 contract
Certain Actions Prohibited. Other than Except (i) in connection with the completion of the Cheal Acquisition, (ii) the conduct of any normal course issuer bid in accordance with the rules of the TSX-V, and (iii) as disclosed consented to in the Primero Disclosure Letter, writing by Trans-Orient (such consent not to be unreasonably withheld or in contemplation of, delayed) or as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero shall not, without the prior written consent of Northgate, which consent TAG shall not be unreasonably withheld or delayed, directly or indirectly do or cause any of the Primero Subsidiaries permit to do, occur any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, or permit any of the Primero TAG Subsidiaries to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero TAG or any of the Primero TAG Subsidiaries, other than the issue of Primero TAG Common Shares pursuant to the valid exercise of outstanding options to purchase TAG Common Shares pursuant to the Primero Options and Primero Warrants issued and outstanding on the date hereof stock option plan of TAG in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Personspersons), sell, lease, encumber lease or otherwise dispose of, or permit any of the Primero TAG Subsidiaries to sell, lease, encumber lease or otherwise dispose of, any material property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articles, notice of articles or by-laws (or their equivalent equivalent) of Primero TAG or any of the Primero TAG Subsidiaries or any of the terms of options to purchase TAG Common Shares issued pursuant to the Primero Options and Primero Warrants stock option plan of TAG as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero TAG or any of the Primero Subsidiaries, TAG Subsidiaries or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesTAG;
(v) redeem, purchase or offer to purchase, or permit any of the Primero TAG Subsidiaries to redeem, purchase or offer to purchase, any Primero TAG Common Shares and, other than pursuant to the Primero Stock Option Planstock option plan of TAG, any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor reorganize, amalgamate or merge TAG or any of the Primero TAG Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or with any other extraordinary transaction in respect of itself, or adopt any plan of liquidationperson;
(vii) acquire or agree to acquire any corporation, partnership (corporation or other entity (or material interest therein) or division of any corporation or other entity, or permit any of the Primero TAG Subsidiaries to acquire or agree to acquire any corporation, partnership corporation or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claimclaim or liability, dispute, Liability or obligation that is not in the ordinary course of business except (x) such as have been included reserved against in the consolidated financial statements of Primero TAG delivered to Northgate Trans- Orient, and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim50,000, dispute, Liability or obligation between Primero and any (y) in the ordinary course of the Primero Subsidiaries or between Primero Subsidiariesbusiness and consistent with past practice; (B) relinquish any contractual rights that which are, individually or in the aggregate, in an amount in excess of $500,00050,000; or (C) enter into any interest rate, rate or currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contractinstruments;
(ix) (A) acquire any material assets; (B) incur incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or to make capital expenditures or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entityto make capital expenditures, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussionTAG Subsidiaries to incur, negotiations authorize, agree or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees otherwise become committed to provide Northgate with immediate notice of any material communication (whether oral guarantees for borrowed money or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) make capital expenditures required or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money or to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify make capital expenditures in an amount either individually or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangementaggregate exceeding $20,000; or
(xvx) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, GAAP or any applicable LawsLaw, make any changes to the existing accounting policies practices of Primero or any of the Primero Subsidiaries TAG or make any material tax election inconsistent with past practice other than as contemplated in this Agreementpractice.
Appears in 1 contract
Sources: Arrangement Agreement (Trans-Orient Petroleum Ltd.)
Certain Actions Prohibited. Other than as disclosed expressly provided for in the Primero Disclosure Letter, or in contemplation of, as required to give effect to the transactions contemplated by this Agreement or as permitted under this Arrangement Agreement, Primero Lexam VG Gold shall not, and shall cause each Lexam VG Gold Subsidiary not to, without the prior written consent of Northgate, which consent shall not be unreasonably withheld or delayed▇▇▇▇▇▇ Mining, directly or indirectly indirectly, do or cause permit to occur any of the Primero Subsidiaries following prior to do, any the earlier of the following, except where to do so would be in Effective Time and the ordinary course termination of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Lawsthis Arrangement Agreement:
(i) issuesplit, sell, grant, pledge, lease, dispose of, encumber consolidate or create any Encumbrance on or agree to do so, or permit reclassify any of the Primero outstanding Lexam VG Gold Shares or shares of any Lexam VG Gold Subsidiaries to issue, sell, grant, pledge, lease, dispose of, encumber or create undertake any Encumbrance on or agree to do so, any shares or other securities ofcapital reorganization, or any options, warrants, calls, conversion privileges or rights reduce the stated capital in respect of any kind to acquire outstanding Lexam VG Gold Shares or shares of any shares of, Primero or any of the Primero Lexam VG Gold Subsidiaries, other than the issue of Primero Shares pursuant to the valid exercise of the Primero Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) settle or compromise any claim brought by any present, former or purported Lexam VG Shareholder or any present, former or purported holder of any other securities of Lexam VG Gold in connection with the Arrangement or any other transactions contemplated by this Arrangement Agreement, except as provided in this Arrangement Agreement;
(iii) amend its articles or by-laws or the terms of any outstanding securities of Lexam VG Gold or any Lexam VG Gold Subsidiary;
(iv) take any action that would result in any amendment, modification or change of any term of any outstanding indebtedness or credit facility of Lexam VG Gold or any Lexam VG Gold Subsidiary;
(v) authorize, approve, agree to issue, issue or sell any securities, including convertible securities, (other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Personsissuance of Lexam VG Gold Shares upon the exercise of currently outstanding Lexam VG Gold Options in accordance with their terms), or redeem, offer to purchase or purchase any of its outstanding securities;
(vi) enter into, create, declare, adopt, amend, vary, modify or take any other action with respect to any bonus, target bonus, profit sharing, incentive, salary or other compensation, equity based award, pension, retirement, deferred compensation, severance, change of control, employment or other employee benefit plan, agreement, trust fund, award or arrangement for the benefit or welfare of any officer, director or employee, or similar rights or other benefits, except for changes in compensation for employees, other than officers and directors, in the Ordinary Course of Business;
(vii) enter into or renew any lease, license or other binding obligation of Lexam VG Gold or any of the Lexam VG Gold Subsidiaries containing any restriction on the ability of Lexam VG Gold and the Lexam VG Gold Subsidiaries or, following completion of the transactions contemplated hereby, the ability of ▇▇▇▇▇▇ Mining to: (A) engage in any type of activity or business; or (B) solicit customers or employees;
(viii) make any loan to, or enter into any other financial agreement with, any officer, director, employee or consultant of Lexam VG Gold or any of their respective affiliates;
(ix) acquire or dispose of any securities;
(x) commit to any single expense having a value in excess of $100,000;
(xi) acquire or commit to acquire any capital assets or group of related capital assets (through one or more related or unrelated acquisitions) having a value in excess of $100,000 in the aggregate;
(xii) except as contemplated, or incurred in connection with, the Arrangement and any other transactions contemplated by this Arrangement Agreement, including the costs contemplated in Section 9.04, incur or commit to incur operating expenditures, capital expenditures or any other expenditures in excess of $100,000 per month;
(xiii) sell, lease, option, encumber or otherwise dispose of, or permit any of the Primero Subsidiaries commit to sell, lease, option, encumber or otherwise dispose of, any property assets or group of related assets (through one or more related or unrelated transactions) having a value in excess of $100,000 in the aggregate, or any of the Lexam VG Gold Properties or Lexam VG Gold Mineral Rights;
(xiv) approve any business plan or budget or any amendment thereof;
(xv) grant any power of attorney to allow any Person to take any action on behalf of Lexam VG Gold or amend any power of attorney allowing any Person to take any action on behalf of Lexam VG Gold, other than in the Ordinary Course of Business;
(xvi) enter into any contract with a term of more than twelve (12) months, except in the Ordinary Course of Business;
(xvii) except in the Ordinary Course of Business: (A) incur or commit to incur any indebtedness for borrowed money (except for indebtedness not to exceed $100,000 in the aggregate for working capital purposes) or issue any debt securities; (B) incur or commit to incur, or guarantee, endorse or otherwise become responsible for, any other material liability, obligation or indemnity or the obligation of any other Person (whether accrued, absolute, contingent or otherwise); or (C) make any loans or advances to any Person;
(xviii) make any changes to the existing accounting policies of Lexam VG Gold or any Lexam VG Gold Subsidiary, other than as required by applicable Laws, Applicable Securities Laws or by IFRS;
(xix) pay, discharge or satisfy any material claims, liabilities or obligations, other than the payment, discharge or satisfaction of liabilities or obligations in the Ordinary Course of Business as they become due in accordance with their terms;
(xx) engage in any transaction with any related parties, other than in the Ordinary Course of Business or as contemplated by the Arrangement or any other transactions contemplated by this Arrangement Agreement or as disclosed in the Lexam VG Gold Public Documents;
(xxi) commit to or enter into any agreement new arrangements, or commitment in respect modify any existing arrangements, between Lexam VG Gold and any Lexam VG Gold Shareholder or holder of any other securities of the foregoing except where to do so would not have a Material Adverse EffectLexam VG Gold;
(iiixxii) commence or settle or assign any rights relating to or any interest in any litigation, proceeding, claim, action, assessment or investigation involving Lexam VG Gold or any of its material assets;
(xxiii) waive, release, grant, transfer, exercise, modify or amend in any material respect, other than in the Ordinary Course of Business: (A) any material Authorization (as hereinafter defined), lease, concession, contract or propose to amend the articlesother document; or (B) any other material rights, notice of articles claims or bydocuments;
(xxiv) enter into any interest rate, currency, equity or commodity swaps, ▇▇▇▇▇▇, derivatives or other similar financial instruments;
(xxv) cause its current insurance and re-laws or their equivalent of Primero insurance policies within its control or any of the Primero Subsidiaries coverage thereunder to lapse, unless simultaneously with such termination, cancellation or any lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the terms of coverage under the Primero Options terminated, cancelled or lapsed policies at substantially similar premiums to the premiums for the policies that are currently in full force and Primero Warrants as they exist at the date of this Agreementeffect;
(ivxxvi) reduce its stated capital, increase any coverage or split, combine premiums under any directors’ and officers’ insurance policy or reclassify enter into any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero Subsidiariesnew such policy;
(vxxvii) redeemacquire or agree to acquire (by merger, amalgamation, arrangement, acquisition of stock or assets or otherwise) any Person (or material interest therein) or division of any Person or make any investment either by purchase of shares or offer to purchasesecurities, contributions of capital, property transfer or permit purchase of any property or assets of the Primero Subsidiaries to redeem, purchase or offer to purchase, any Primero Shares and, other than pursuant to the Primero Stock Option Plan, any other securities or rights under existing contracts, agreements and commitmentsPerson;
(vixxviii) neither Primero nor adopt a plan of liquidation or any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidationLexam VG Gold;
(viixxix) acquire fail to duly and timely file all material forms, reports, schedules, statements and other documents required to be filed pursuant to any applicable Laws or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entityApplicable Securities Laws;
(viiixxx) (A) satisfy fail to duly and timely file all material Tax returns required to be filed by it on or settle any claimafter the date hereof (which Tax returns shall be true, dispute, Liability or obligation that is not complete and correct in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiariesall material respects); (B) relinquish fail to timely withhold, collect, remit and pay all material Taxes which are to be withheld, collected, remitted or paid by it to the extent due and payable, except for any contractual rights that are, individually or Taxes contested in good faith pursuant to applicable Laws and for which adequate provision is made in the aggregate, in an amount in excess of $500,000Lexam VG Gold Financial Statements; (C) enter into make or rescind any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposesmaterial election relating to Taxes; (D) make a request for a Tax ruling, enter into a closing agreement with any Tax authorities or renew waive extending the period for assessment or allocation of Taxes; (E) settle or compromise any leasematerial claim, license action, suit, litigation, proceeding, arbitration, investigation, audit or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries controversy relating to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this AgreementTaxes; or (EF) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorizationof its methods of reporting income, leasedeductions or accounting for income tax purposes from those employed in the preparation of its income tax return for the tax year ending December 31, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions2015, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the abovemay be required by applicable Laws;
(xxxxi) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the any other transactions contemplated by this Arrangement Agreement or regarding the status of the Primero Property Lexam VG Gold Properties or the Primero Lexam VG Gold Mineral Rights) without the prior consent of Northgate ▇▇▇▇▇▇ Mining such consent not to be unreasonably withheld, and further agrees withheld or fail to provide Northgate ▇▇▇▇▇▇ Mining with immediate notice orally and then promptly in writing of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xixxxii) enter intofail to notify ▇▇▇▇▇▇ Mining immediately orally and then promptly in writing of any material change (within the meaning of the Securities Act) or of any complaint, investigation or cause hearing involving any Primero Subsidiaries Governmental Entity, Canadian Securities Administrator, U.S. Securities Administrator, stock exchange or other Person (or communications indicating that the same may be contemplated), in both cases in relation to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse EffectLexam VG Gold;
(xiixxxiii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salaryas permitted by this Arrangement Agreement, bonuses under its enter into any transaction or their existing bonus arrangements and directors’ fees in perform any act which might interfere with or be materially inconsistent with the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in successful completion of the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture Arrangement or any other bonustransactions contemplated by this Arrangement Agreement or which would render, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could which may reasonably be expected to be prejudicial render, untrue or inaccurate (without giving effect to, applying or taking into consideration any materiality or Material Adverse Effect qualification already contained within such representation or warranty) in any material respect at any time prior to Northgatethe Effective Time Lexam VG Gold’s interest representations and warranties set forth in the businessthis Arrangement Agreement; and
(xxxiv) announce an intention, property enter into any formal or assets of Primero informal agreement, or otherwise make a commitment to do any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required things prohibited by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreementforegoing subparagraphs.
Appears in 1 contract
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, as required to give effect to the transactions contemplated by this Agreement or as permitted under this by the Amalgamation Agreement, Primero Valorem shall not, without the prior written consent of Northgate1267818, which consent shall not be unreasonably withheld or delayedwithheld, directly or indirectly do or agree to do, or cause any of the Primero Subsidiaries Valorem Subsidiary to do or agree to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) other than as contemplated hereunder, issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soon, or permit any of the Primero Subsidiaries a Subsidiary to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soon, any common shares or other securities ofin the capital of Valorem, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any common shares of, Primero of Valorem or any of the Primero Subsidiaries, other than the issue of Primero Shares pursuant to the valid exercise of the Primero Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker WarrantsValorem Subsidiary;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons)persons) or as required in the ordinary and regular course of business, sell, lease, encumber or otherwise dispose of, or permit any of the Primero Subsidiaries Valorem Subsidiary to sell, lease, encumber or otherwise dispose of, any material property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectassets;
(iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero or any of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the common shares or other securities in the capital of Primero or any of the Primero Subsidiaries, Valorem or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero Subsidiariessuch common shares;
(viv) redeem, purchase or offer to purchase, or permit any of the Primero Subsidiaries Valorem Subsidiary to redeem, purchase or offer to purchase, any Primero Shares and, other than pursuant to common shares in the Primero Stock Option Plan, capital of Valorem and any other securities options or obligations or rights under existing contracts, agreements and commitments;
(viv) neither Primero nor any of the Primero Subsidiaries will other than as contemplated hereby, adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(viivi) acquire make, or agree permit any Valorem Subsidiary to acquire make, any material: (A) acquisition of a corporation, partnership (or division of any corporation or other entity or material interest therein; or (B) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entityinvestment;
(viiivii) (A) satisfy or settle any claimclaims or disputes, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated Valorem's financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, aggregate in an amount in excess of $500,00050,000; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ixviii) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advancesin each case in or for a material amount; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorizationlicense, lease, contract, production sharing agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; or (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xiix) enter into, or cause any Primero Subsidiaries Subsidiary to enter into, material new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Lawslaw; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xiix) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements arrangements, and directors’ ' fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual normal course of business;
(xiiixi) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, insurance, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as if it is necessary to comply with Laws the law or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xivxii) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate1267818’s interest in the business, affairs or property or assets of Primero or any of the Primero Subsidiaries Valorem and its Subsidiary following the closing of the Arrangement; orAmalgamation;
(xiii) enter into or modify any employment, consulting, severance, collective bargaining or similar agreement, policy or arrangement with, or grant any bonus, salary, increase, option to purchase shares, pension or supplemental pension benefit, profit sharing, retirement allowance, deferred compensation, incentive compensation, severance, change of control or termination pay to, or make any loan to, any officer, director, employee or consultant of Valorem or any Valorem Subsidiary;
(xiv) take any action, or refrain from taking any action, or permit any action to be take or not taken, inconsistent with the provisions of this Agreement or which would reasonably be expected to materially impede the completion of the transactions contemplated hereby or would render, or that could reasonably be expected to render, any representation or warranty made by Valorem in this Agreement untrue or inaccurate in any material respect at any time prior to the Effective Date if then made, or which would or could have a Material Adverse Effect on Valorem;
(xv) except as required settle or compromise any material claim brought by Canadian GAAPany present, former or purported holder of any securities of Valorem in connection with the transactions contemplated by this Agreement prior to the Effective Date; and
(xvi) enter into, renew or modify in any respect any material contract, agreement, lease, commitment or arrangement to which Valorem or any other generally accepted accounting principle to Valorem Subsidiary is a party or by which any of the Primero Subsidiaries them is bound, except insofar as may be subject, necessary to permit or any applicable Laws, make any changes to provide for the existing accounting policies of Primero or any completion of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this AgreementAmalgamation.
Appears in 1 contract
Sources: Acquisition Agreement
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as otherwise permitted under pursuant to this Agreement, Primero Bravura shall not, without the prior written consent of NorthgateRedLion, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries following prior to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable LawsEffective Date:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grant, pledge, lease, dispose of, or encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero or any of the Primero SubsidiariesBravura, other than the issue of Primero Bravura Common Shares pursuant upon the exercise of Bravura Options;
(ii) incur or commit to incur any debt, except in the ordinary and regular course of business, or to finance its working capital requirements, or as otherwise contemplated herein in connection with the transactions contemplated by this Agreement;
(iii) declare or pay any dividends or distribute any of its properties or assets to shareholders with respect to the valid exercise Bravura Common Shares;
(iv) enter into material contracts, other than in the ordinary and regular course of business, in connection with the Primero Options and Primero Warrants issued and outstanding Amalgamation or as otherwise contemplated herein;
(v) alter or amend its notice of articles or articles, other than in connection with the proposed consolidation of Bravura Common Shares on a five for one basis or as may be required in connection with the date hereof transactions contemplated herein;
(vi) engage in accordance with their terms any business enterprise or other activity different from that carried on or contemplated as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(iivii) other than pursuant to obligations the terms of property acquisitions or rights under existing contracts, agreements in the ordinary and commitments (to the extent such rights have been exercised or initiated by other Persons)regular course of business, sell, pledge, lease, dispose of, grant any interest in, encumber or otherwise agree to sell, pledge, lease, dispose of, grant any interest in or permit encumber any of the Primero Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or its assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse EffectEffect on Bravura;
(iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero or any of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero Subsidiaries;
(vviii) redeem, purchase or offer to purchase, or permit purchase any of the Primero Subsidiaries to redeemBravura Common Shares, purchase Bravura Options, or offer to purchaseother securities; or
(ix) acquire, directly or indirectly, any Primero Shares andassets, including but not limited to securities of other than pursuant to the Primero Stock Option Plancompanies, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 1 contract
Sources: Amalgamation Agreement
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, or as required to give effect to to, the transactions contemplated by this Agreement Agreement, or as otherwise permitted under pursuant to this Agreement, Primero Canntab shall not, without the prior written consent of NorthgateTelferscot, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries following prior to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable LawsEffective Date:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on on, or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grant, pledge, lease, dispose of, or encumber or create any Encumbrance on or agree to do soon, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero or any of the Primero SubsidiariesCanntab, other than in connection with the issue Financing;
(ii) incur or commit to incur any debt, except in the ordinary and regular course of Primero Shares pursuant business, or to finance its working capital requirements, or as otherwise contemplated herein in connection with the transactions contemplated by this Agreement;
(iii) declare or pay any dividends or distribute any of its properties or assets to the valid exercise Canntab Shareholders;
(iv) enter into Material Contracts without the consent of Telferscot, other than in connection with the Primero Options and Primero Warrants issued and outstanding Transaction or as otherwise contemplated herein;
(v) alter or amend its articles or by-laws, other than as may be required in connection with the transactions contemplated herein, including the Amalgamation;
(vi) engage in any business enterprise or other activity different from that carried on the date hereof in accordance with their terms or contemplated by it as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(iivii) other than pursuant to obligations or rights under existing contracts, agreements in the ordinary and commitments (to the extent such rights have been exercised or initiated by other Persons)regular course of business, sell, pledge, lease, encumber or otherwise dispose of, grant any interest in, encumber, or permit any of the Primero Subsidiaries agree to sell, pledge, lease, encumber or otherwise dispose of, grant any property interest in or assets or enter into any agreement or commitment in respect of encumber, any of the foregoing its assets except where to do so would not have a Material Adverse EffectEffect on Canntab;
(iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero or any of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero Subsidiaries;
(vviii) redeem, purchase or offer to purchase, or permit purchase any of the Primero Subsidiaries to redeemCanntab Shares, purchase Canntab Options, Canntab Warrants, Agent Warrants or offer to purchaseany of its other securities; or
(ix) acquire, directly or indirectly, any Primero Shares andassets, including but not limited to securities of other than pursuant to the Primero Stock Option Plancompanies, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 1 contract
Sources: Amalgamation Agreement
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreementherein, Primero Colombia shall not (and shall ensure that the Colombia Subsidiaries do not), without the prior written consent of Northgate, Medoro which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause any of the Primero Subsidiaries permit to do, occur any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, contribute capital, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, contribute capital, dispose of, or encumber or create any Encumbrance on, or permit any of the Primero Subsidiaries a Colombia Subsidiary to issue, sell, grant, pledge, lease, contribute capital, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, contribute capital, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Colombia or any of the Primero Colombia Subsidiaries, other than the issue of Primero Colombia Common Shares pursuant to the valid exercise of the Primero Colombia Options and Primero or the Colombia Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant in the ordinary and regular course of business consistent with past practice, in respect of rights, properties or assets that are not, either individually or in the aggregate, material to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons)Colombia, sell, lease, encumber lease or otherwise dispose of, or permit any of the Primero Colombia Subsidiaries to sell, lease, encumber lease or otherwise dispose of, any material property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articles, notice of articles or by-laws (or their equivalent equivalent) of Primero Colombia or any of the Primero Colombia Subsidiaries or any of the terms of the Primero Colombia Options and Primero Warrants or the Colombia Warrants, in each case as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero Colombia or any of the Primero Colombia Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesColombia;
(v) redeem, purchase or offer to purchase, purchase or permit any of the Primero Colombia Subsidiaries to redeem, purchase or offer to purchase, any Primero Colombia Common Shares and, other than pursuant to the Primero Stock Colombia Share Option PlanPlans, any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor reorganize, amalgamate or merge Colombia or any of the Primero Colombia Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or with any other extraordinary transaction in respect of itself, or adopt any plan of liquidationperson other than another Colombia Subsidiary;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability claims or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and disputes which are, individually or in the aggregate, in an amount in excess of $500,000 25,000 or which constitutes constitute a claim, dispute, Liability or obligation claim between Primero Colombia and any of the Primero Subsidiaries a Colombia Subsidiary or between Primero Colombia Subsidiaries; (B) relinquish any contractual rights that which are, individually or in the aggregate, in an amount in excess of $500,00025,000; or (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or any other material Liability or obligation or issue any debt securities or assumeincur, guaranteeauthorize, endorse agree or otherwise as an accommodation become responsible for, committed for any indebtedness in excess of $25,000 in the obligations of any other individual or entityaggregate, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the aboveColombia Subsidiaries to incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian U.S. GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries Colombia Subsidiary may be subject, subject or any applicable Laws, make any changes to the existing accounting policies practices of Primero or any of the Primero Subsidiaries Colombia or make any material tax election inconsistent with past practice other than as contemplated in this Agreementpractice; or
(xi) agree or commit to do any of the foregoing.
Appears in 1 contract
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as otherwise permitted under pursuant to this Agreement, Primero Talisker shall not, without the prior written consent of NorthgateRipper, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries following prior to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable LawsEffective Date:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grant, pledge, lease, dispose of, or encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares ofof Talisker;
(ii) incur or commit to incur in any debt, Primero except in the ordinary and regular course of business, or to finance its working capital requirements, or as otherwise contemplated in connection with the transactions contemplated in this Agreement;
(iii) with the exception of the Angus Distribution, declare or pay any dividends or distribute any of its property or assets to shareholders with respect to the Primero SubsidiariesTalisker Shares;
(iv) enter into any material Contracts, other than in the issue ordinary and regular course of Primero Shares pursuant to business, in connection with the valid exercise Amalgamation or as otherwise contemplated herein;
(v) alter or amend its notice of articles or articles, other than as may be required in connection with the Primero Options and Primero Warrants issued and outstanding transactions contemplated herein;
(vi) engage in any business enterprise or other activity different from that carried on the date hereof in accordance with their terms or contemplated as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(iivii) other than pursuant to obligations the terms of property acquisitions or rights under existing contracts, agreements in the ordinary and commitments (to the extent such rights have been exercised or initiated by other Persons)regular course of business, sell, pledge, lease, dispose of, grant any interest in, encumber or otherwise agree to sell, pledge, lease, dispose of, grant any interest in or permit encumber any of the Primero Subsidiaries to sellits assets, lease, encumber or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse EffectEffect on Talisker;
(iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero or any of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero Subsidiaries;
(vviii) redeem, purchase or offer to purchase, or permit purchase any of the Primero Subsidiaries to redeemTalisker Shares or other securities; or
(ix) acquire, purchase directly or offer to purchaseindirectly, any Primero Shares andassets, including but not limited to securities of other than pursuant to the Primero Stock Option Plancompanies, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
Appears in 1 contract
Sources: Amalgamation Agreement
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreement, Primero Lido shall not, without the prior written consent of Northgate, which consent and shall cause Pacific West not be unreasonably withheld or delayedto, directly or indirectly indirectly, without Cappex’s prior written consent, do or cause permit to occur any of the Primero Subsidiaries to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:following:
(i) other than in connection with the Private Placement or the exercise of any Lido Options, issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grant, pledge, lease, dispose of, of or encumber or create any Encumbrance on any Lido Shares or agree to do so, any shares or other securities ofof Lido’s Subsidiaries, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Lido Shares or any securities of the Primero Subsidiaries, other than the issue of Primero Shares pursuant to the valid exercise of the Primero Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker WarrantsPacific West;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons), sell, lease, encumber lease or otherwise dispose of, of or permit any of the Primero Subsidiaries to sell, lease, encumber or otherwise dispose of, create any Encumbrance on any material property or material assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effectforegoing;
(iii) amend or propose to amend the articles, notice of articles or by-laws articles of Lido or their equivalent of Primero or any of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this AgreementPacific West;
(iv) reduce its stated capital, or split, combine or reclassify any of the Lido Shares or the shares of Pacific West;
(v) redeem, purchase or offer to purchase any Lido Shares;
(vi) reorganize, amalgamate or merge Lido or Pacific West with any other securities of Primero or any of the Primero Subsidiaries, or Person;
(vii) declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero Subsidiaries;
(v) redeem, purchase or offer to purchase, or permit any of the Primero Subsidiaries to redeem, purchase or offer to purchase, any Primero Shares and, other than pursuant to the Primero Stock Option Plan, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;Lido Shareholders;
(viii) (A) satisfy or settle relinquish any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and contractual rights which are, individually or in the aggregate, in an amount in excess material, or enter into, amend or terminate any Material Contracts;
(ix) incur, authorize, agree or otherwise become committed to provide guarantees for borrowed money or incur, authorize, agree or otherwise become committed for any indebtedness for borrowed money;
(x) acquire or agree to acquire (by merger, amalgamation, consolidation or acquisition of $500,000 shares or which constitutes a claimassets) any corporation, disputepartnership or other business organization or division thereof (or material interest therein), Liability or obligation between Primero and make any investment either by purchase of the Primero Subsidiaries shares or between Primero Subsidiaries; securities, contributions of capital or property transfer;
(B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; (Cxi) enter into any interest rate, currency transaction with or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales make payments to a party or other similar financial instruments parties with which it does not deal at arm's length other than in the ordinary and regular course of business and not for speculative purposes; business;
(Dxii) enter into or renew modify, including in connection with the Lido Management Reconstitution, any leaseemployment, license severance or other binding obligation of Primero similar agreement, policy or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in whicharrangement with, or the localities in whichgrant any bonus, all salary increase, option to purchase shares, profit sharing, retirement allowance, deferred compensation, incentive compensation, severance, change of control or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conductedtermination pay to, or make any loan to, any employee, officer or director of Lido or Pacific West, except as approved in writing by Cappex;
(cxiii) commit to any limit or restriction on the ability of Primero or single expense, acquire to commit to acquire any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employeescapital assets, or incur or commit to operating or capital expenditures, in each case having a value in excess of $50,000;
(2xiv) that would reasonably be expected to materially delay pay, discharge or prevent satisfy any material claims, liabilities or obligations other than the consummation of the transactions contemplated by this Agreement; payment, discharge or (E) except as provided or in Primero’s budgetsatisfaction, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable consistent with past practice in accordance with their terms, of liabilities reflected in the Lido Financial Statements or in the Lido Public Documents;
(xv) cause their current insurance and re‐insurance policies within thirty (30) days of the Effective Date without payment by Northgate their control or any of the Northgate Subsidiaries that involves or would reasonably be expected coverage thereunder to involve payments in excess of $500,000 in the aggregate over the term of the contract;lapse; or
(ixxvi) (A) acquire take any material assets; (B) incur any indebtedness for borrowed money action that would interfere with or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, be inconsistent with the obligations completion of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter intowould render, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could may reasonably be expected to be prejudicial to Northgate’s interest render, any representation or warranty made by Lido or Pacific West in the business, property this Agreement untrue or assets of Primero or inaccurate at any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes time prior to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this AgreementEffective Time if then made.
Appears in 1 contract
Sources: Business Combination Agreement
Certain Actions Prohibited. Other than as disclosed Except in connection with the Primero Disclosure LetterOsisko Arrangement, the Chantrell Financing, or in contemplation ofthe Chantrell Consolidation, as required to give effect to the transactions otherwise as contemplated by this Agreement or as permitted under this Agreementherein, Primero shall notneither Chantrell nor any Chantrell Subsidiary shall, without the prior written consent of NorthgateAlexandria, which consent shall not be unreasonably withheld withheld, conditioned or delayed, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries to do, any of the following, following except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issueother than in connection with the Chantrell Consolidation, sellsplit, grantconsolidate or reclassify any of its outstanding Chantrell Shares nor undertake any other capital reorganization, pledgenor declare, lease, dispose of, encumber set aside or create pay any Encumbrance dividends on or agree to do so, or permit make any of the Primero Subsidiaries to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance other distributions on or agree to do soin respect of its outstanding Chantrell Shares, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights nor reduce stated capital in respect of any kind to acquire any shares of, Primero or any of the Primero Subsidiaries, other than the issue of Primero Shares pursuant to the valid exercise of the Primero Options and Primero Warrants issued and its outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker WarrantsChantrell Shares;
(ii) amend its articles or by‐laws or the terms of any of its outstanding securities, including, without limitation, any outstanding indebtedness and credit facilities;
(iii) make any changes to existing accounting policies other than pursuant as required by applicable Laws, Applicable Securities Laws or by IFRS;
(iv) adopt a plan of liquidation or resolutions providing for its liquidation or dissolution;
(v) issue or sell or agree to obligations issue or rights under existing contractssell any securities (other than the issuance of Chantrell Shares upon the exercise of currently outstanding Chantrell Options or Chantrell Warrants, agreements and commitments (to the extent such rights have been exercised or initiated by other Personsin accordance with their respective terms), or redeem, offer to purchase or purchase any of its outstanding securities;
(vi) authorize, approve, agree to issue, issue or award any Chantrell Options;
(vii) enter into, create, declare, adopt, amend, vary, modify or take any other action with respect to any bonus, target bonus, profit sharing, incentive, salary or other compensation, equity based award, pension, retirement, deferred compensation, severance, change in control, employment or other employee benefit plan, agreement, trust fund, award or arrangement for the benefit or welfare of any officer, director or employee, or similar rights or other benefits, except for changes in compensation for employees, other than officers and directors, in the ordinary course of business consistent with past practice;
(viii) acquire or dispose of any securities, except in the ordinary course of business consistent with past practice;
(ix) commit to any single expense having a value in excess of $50,000;
(x) acquire or commit to acquire any capital assets or group of related capital assets (through one or more related or unrelated acquisitions) having a value in excess of $50,000 in the aggregate;
(xi) incur, or commit to, operating expenditures or capital expenditures in excess of $50,000 in the aggregate;
(xii) sell, lease, option, encumber or otherwise dispose of, or permit any of the Primero Subsidiaries commit to sell, lease, option, encumber or otherwise dispose of, any property or assets or group of related assets (through one or more related or unrelated transactions) having a value in excess of $50,000 in the aggregate;
(xiii) approve any plan and budget or any amendment thereof;
(xiv) approve the grant of any power of attorney to allow any person to take any action on behalf of Alexandria or the amendment of any power of attorney allowing any person to take any action on behalf of Chantrell;
(xv) enter into any agreement or commitment in respect contract with a term of any of the foregoing except where to do so would not have a Material Adverse Effectmore than twelve (12) months;
(iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero or any of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero Subsidiaries;
(v) redeem, purchase or offer to purchase, or permit any of the Primero Subsidiaries to redeem, purchase or offer to purchase, any Primero Shares and, other than pursuant to the Primero Stock Option Plan, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viiixvi) (A) incur or commit to incur any indebtedness for borrowed money or issue any debt securities, (B) incur or commit to incur, or guarantee, endorse or otherwise become responsible for, any other material Liability, obligation or indemnity or the obligation of any other Person, or (C) make any loans or advances to any Person;
(xvii) make any changes to existing accounting policies other than as required by applicable Laws, Applicable Securities Laws or by IFRS;
(xviii) pay, discharge or satisfy any claims, liabilities or settle any claimobligations other than the payment, disputedischarge or satisfaction, Liability or obligation that is not in the ordinary course of business except such as have been included consistent with past practice in accordance with their terms, of liabilities reflected or reserved against in the consolidated financial statements Chantrell Financial Statements;
(xix) engage in any transaction with any related parties;
(xx) commit to or enter into any new arrangements, or modify any existing arrangements, between Chantrell and any shareholder or holder of Primero delivered convertible securities of Chantrell owning or controlling more than 1% of the outstanding Chantrell Shares;
(xxi) commence or settle or assign any rights relating to Northgate and which areor any interest in any litigation, individually proceeding, claim, action, assessment or investigation involving any of Chantrell or any of its material assets;
(xxii) waive, release, grant, transfer, exercise, modify or amend in any material respect, other than in the aggregateordinary course of business consistent with past practice, in an amount in excess of $500,000 (A) any material Authorization, lease, concession, contract or which constitutes a claimother document, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual other material legal rights that are, individually or in the aggregate, in an amount in excess of $500,000; claims;
(Cxxiii) enter into any interest rate, currency currency, equity or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales derivatives or other similar financial instruments instruments;
(xxiv) cause its current insurance and re‐insurance policies within its control or any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re‐insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums that are currently in full force and effect;
(xxv) increase any coverage or premiums under any directors' and officers' insurance policy or enter into any new policy;
(xxvi) acquire or agree to acquire (by merger, amalgamation, arrangement, acquisition of stock or assets or otherwise) any person or division of any person or make any investment either by purchase of shares or securities, contributions of capital, property transfer or purchase of any property or assets of any other than person
(xxvii) fail to duly and timely file any material forms, reports, schedules, statements or other documents required to be filed pursuant to any applicable Laws or Applicable Securities Laws;
(xxviii) (A) fail to duly and timely file any material Tax Returns required to be filed by it on or after the date hereof, and all such Tax Returns will be true, complete and correct in all material respects; (B) fail to timely withhold, collect, remit and pay any material Taxes which are required to be withheld, collected, remitted or paid by it to the extent due and payable except for any Taxes contested in good faith pursuant to applicable Laws that are not required to be paid under applicable Laws and for which adequate provision is made in the ordinary and regular course of business and not for speculative purposesrelevant financial statements; (C) make or rescind any material election relating to Taxes; (D) make a request for a tax ruling, enter into a closing agreement with any taxing authorities or renew execute a waiver extending the period for assessment, reassessment, collection or allocation of Taxes; (E) settle or compromise any leasematerial claim, license action, suit, litigation, proceeding, arbitration, investigation, audit or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries controversy relating to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this AgreementTaxes; or (EF) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorizationof its methods of reporting income, leasedeductions or accounting for income tax purposes from those employed in the preparation of its income tax return for the tax year ending December 31, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions2018, except for as may be required by applicable Laws;
(xxix) fail to notify Alexandria immediately, first orally and then promptly in writing, of any material change (within the settlement of silver call option contracts in existence as meaning of the date Securities Act) in relation to Chantrell and of this Agreement; any material governmental or third party complaints, investigations or hearings (For communications indicating that the same may be contemplated) in relation to Chantrell;
(xxx) enter into any financial agreements transaction or perform any act which might interfere with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any be materially inconsistent with the successful completion of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement which would render, or regarding the status of the Primero Property which may reasonably be expected to render, untrue or the Primero Mineral Rightsinaccurate (without giving effect to, applying or taking into consideration any materiality or Material Adverse Effect qualification already contained within such representation or warranty) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice in any material respect of any material communication (whether oral or written) from a Governmental Entity, including a copy representations and warranties of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated Chantrell set forth in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;and
(xiixxxi) create announce an intention, enter into any new obligations formal or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, informal agreement, trust, fund or arrangements for the benefit of employees, except as is necessary otherwise make a commitment to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or do any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required things prohibited by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreementforegoing subsections.
Appears in 1 contract
Sources: Arrangement Agreement
Certain Actions Prohibited. Other than as disclosed in the Primero Kinross Disclosure Letter, Letter or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as permitted under this Agreementherein, Primero and, except where doing so would not have a Material Adverse Effect on Kinross, Kinross shall not, without the prior written consent of Northgate, Bema which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause any of the Primero Subsidiaries permit to do, occur any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, or permit any of the Primero Subsidiaries a Kinross Subsidiary to issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do soissue, sell, pledge, lease, dispose of, or encumber or create any Encumbrance on, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero Kinross or any of the Primero SubsidiariesKinross Subsidiaries or any of the shares representing Kinross’ interest in the Kinross Significant Interest Companies, other than the issue of Primero Kinross Common Shares pursuant to the valid exercise of the Primero Kinross Options and Primero or the Kinross Warrants issued and outstanding on the date hereof hereof, in accordance with their terms as of the date hereof, the conversion by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrants;
(ii) other than pursuant to obligations or rights under existing contracts, agreements and commitments (to the extent such rights have been exercised or initiated by other Persons), sell, lease, encumber or otherwise dispose of, or permit any of the Primero Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse Effect;
(iii) amend or propose to amend the articles, notice of articles or by-laws (or their equivalent equivalent) of Primero Kinross or any of the Primero Kinross Subsidiaries or any of the terms of the Primero Kinross Options and Primero or the Kinross Warrants as they exist at the date of this Agreement;
(iviii) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero Kinross or any of the Primero Subsidiaries, Kinross Subsidiaries or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero SubsidiariesKinross;
(viv) redeem, purchase or offer to purchase, or permit any of the Primero Kinross Subsidiaries to redeem, purchase or offer to purchase, any Primero Kinross Common Shares and, other than pursuant to the Primero Stock Kinross Share Option PlanPlans, any other securities options or obligations or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree commitments to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangementpurchase Kinross Common Shares; or
(xvv) except as required by Canadian GAAP, agree or any other generally accepted accounting principle commit to which do any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreementforegoing.
Appears in 1 contract
Certain Actions Prohibited. Other than as disclosed in the Primero Disclosure Letter, or in contemplation of, of or as required to give effect to the transactions contemplated by this Agreement or as otherwise permitted under pursuant to this Agreement, Primero Karoo shall not, without the prior written consent of NorthgateBruin Point, which consent shall not be unreasonably withheld or delayed, directly or indirectly do or cause permit to occur any of the Primero Subsidiaries following prior to do, any of the following, except where to do so would be in the ordinary course of business and consistent with past practice, or except where refraining from taking any such action, or seeking the consent of Northgate, as the case may be, would be contrary to applicable Laws:Effective Date:
(i) issue, sell, grant, pledge, lease, dispose of, encumber or create any Encumbrance on or agree to do so, or permit any of the Primero Subsidiaries to issue, sell, grant, pledge, lease, dispose of, or encumber or create any Encumbrance on or agree to do so, any shares or other securities of, or any options, warrants, calls, conversion privileges or rights of any kind to acquire any shares of, Primero or any of the Primero SubsidiariesKaroo, other than the issue of Primero Shares pursuant to the valid exercise of the Primero Options and Primero Warrants issued and outstanding on the date hereof in accordance with their terms as of the date hereof, the conversion contemplated by Primero or the Primero Major Shareholder of the Primero Convertible Note, or the exercise of the Primero Broker Warrantsthis Agreement;
(ii) other than in connection with the Bridge Loan, incur or commit to incur any debt, except in the ordinary and regular course of business, or to finance its working capital requirements, or as otherwise contemplated herein in connection with the transactions contemplated by this Agreement;
(iii) declare or pay any dividends or distribute any of its properties or assets to shareholders with respect to the Karoo Common Shares;
(iv) enter into material contracts, other than in the ordinary and regular course of business, in connection with the Amalgamation or as otherwise contemplated herein;
(v) alter or amend its notice of articles or articles, other than in connection with the Karoo Consolidation or as may be required in connection with the transactions contemplated herein;
(vi) engage in any business enterprise or other activity different from that carried on or contemplated as of the date hereof;
(vii) other than pursuant to obligations the terms of property acquisitions or rights under existing contracts, agreements in the ordinary and commitments (to the extent such rights have been exercised or initiated by other Persons)regular course of business, sell, pledge, lease, dispose of, grant any interest in, encumber or otherwise agree to sell, pledge, lease, dispose of, grant any interest in or permit encumber any of the Primero Subsidiaries to sell, lease, encumber or otherwise dispose of, any property or its assets or enter into any agreement or commitment in respect of any of the foregoing except where to do so would not have a Material Adverse EffectEffect on Karoo;
(iii) amend or propose to amend the articles, notice of articles or by-laws or their equivalent of Primero or any of the Primero Subsidiaries or any of the terms of the Primero Options and Primero Warrants as they exist at the date of this Agreement;
(iv) reduce its stated capital, or split, combine or reclassify any of the shares or other securities of Primero or any of the Primero Subsidiaries, or declare, set aside or pay any dividend or other distribution payable in cash, securities, property or otherwise with respect to the Primero Shares or the shares of any of the Primero Subsidiaries;
(vviii) redeem, purchase or offer to purchase, or permit purchase any of the Primero Subsidiaries to redeemKaroo Common Shares or other securities; or
(ix) acquire, purchase directly or offer to purchaseindirectly, any Primero Shares andassets, including but not limited to securities of other than pursuant to the Primero Stock Option Plancompanies, any other securities or rights under existing contracts, agreements and commitments;
(vi) neither Primero nor any of the Primero Subsidiaries will adopt resolutions or enter into any agreement providing for the amalgamation, merger, consolidation, reorganization, liquidation, dissolution or any other extraordinary transaction in respect of itself, or adopt any plan of liquidation;
(vii) acquire or agree to acquire any corporation, partnership (or other entity or material interest therein) or division of any corporation or other entity, or permit any of the Primero Subsidiaries to acquire or agree to acquire any corporation, partnership or other entity (or material interest therein) or division of any corporation or other entity;
(viii) (A) satisfy or settle any claim, dispute, Liability or obligation that is not in the ordinary course of business except such as have been included in the consolidated financial statements of Primero delivered to Northgate and which are, individually or in the aggregate, in an amount in excess of $500,000 or which constitutes a claim, dispute, Liability or obligation between Primero and any of the Primero Subsidiaries or between Primero Subsidiaries; (B) relinquish any contractual rights that are, individually or in the aggregate, in an amount in excess of $500,000; (C) enter into any interest rate, currency or commodity swaps, ▇▇▇▇▇▇, caps, collars, forward sales or other similar financial instruments other than in the ordinary and regular course of business and not for speculative purposes; (D) enter into or renew any lease, license or other binding obligation of Primero or any of the Primero Subsidiaries (1) containing (a) any limitation or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of the Northgate Subsidiaries to engage in any type of activity or business, (b) any limitation or restriction on the manner in which, or the localities in which, all or any portion of the business of Primero or any of the Primero Subsidiaries or following consummation of the transactions contemplated hereby, all or any portion of the business Northgate or any of the Northgate Subsidiaries, is or would be conducted, or (c) any limit or restriction on the ability of Primero or any of the Primero Subsidiaries or, following completion of the transactions contemplated hereby, the ability of Northgate or any of the Northgate subsidiaries, to solicit customers or employees, or (2) that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement; or (E) except as provided or in Primero’s budget, not enter into or renew any agreement, contract, lease, license or other binding obligation of Primero or any of the Primero Subsidiaries that is not in the ordinary course of business not terminable within thirty (30) days of the Effective Date without payment by Northgate or any of the Northgate Subsidiaries that involves or would reasonably be expected to involve payments in excess of $500,000 in the aggregate over the term of the contract;
(ix) (A) acquire any material assets; (B) incur any indebtedness for borrowed money or any other material Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except inter-company guarantees and inter-company loans and advances; (C) authorize, recommend or propose any release or relinquishment of any material contractual right; (D) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing material Authorization, lease, contract, agreement, government land concession or other material legal rights, claims or document; (E) enter into or terminate any ▇▇▇▇▇▇, swaps or other similar financial instruments or transactions, except for the settlement of silver call option contracts in existence as of the date of this Agreement; (F) enter into any financial agreements with its directors or officers or their respective affiliates; or (G) authorize, propose, permit or agree to any of the above;
(x) initiate any material discussion, negotiations or filings with any Governmental Entity regarding any matter (including with respect to the Arrangement or the transactions contemplated by this Agreement or regarding the status of the Primero Property or the Primero Mineral Rights) without the prior consent of Northgate such consent not to be unreasonably withheld, and further agrees to provide Northgate with immediate notice of any material communication (whether oral or written) from a Governmental Entity, including a copy of any written communication;
(xi) enter into, or cause any Primero Subsidiaries to enter into, new material commitments of a capital expenditure nature or incur any new material contingent liabilities other than: (A) ordinary course expenditures; (B) expenditures required by Laws; (C) expenditures made in connection with transactions contemplated in this Agreement; and (D) capital expenditures required to prevent the occurrence of a Material Adverse Effect;
(xii) create any new obligations or liabilities or modify or in any manner amend any existing obligations and liabilities to pay any amount, including loan amounts, to its or their officers, directors, employees and consultants, other than for salary, bonuses under its or their existing bonus arrangements and directors’ fees in the ordinary course, in each case in amounts consistent with historic practices and obligations or liabilities or arising in the ordinary and usual course of business;
(xiii) adopt or amend or make any contribution to the Primero Benefit Plan, the Primero Stock Option Plan, Primero Warrant Indenture or any other bonus, profit sharing, option, deferred compensation, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements;
(xiv) take actions or fail to take any action that could reasonably be expected to be prejudicial to Northgate’s interest in the business, property or assets of Primero or any of the Primero Subsidiaries following the closing of the Arrangement; or
(xv) except as required by Canadian GAAP, or any other generally accepted accounting principle to which any of the Primero Subsidiaries may be subject, or any applicable Laws, make any changes to the existing accounting policies of Primero or any of the Primero Subsidiaries or make any material tax election inconsistent with past practice other than as contemplated in this Agreement.
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Sources: Amalgamation Agreement