Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermex: (a) the Arrangement shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2; (b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order; (c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise; (d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained; (e) this Agreement shall not have been terminated pursuant to Article 6; (f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein; (g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance; (h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction; (i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and (j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic): (a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects; (b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date; (c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex; (d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement; (e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement; (f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success: (i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex; (ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary; (iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex; (iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or (v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic; (g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably; (h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and (i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunder.
Appears in 3 contracts
Sources: Arrangement Agreement (Silvermex Resources Inc), Arrangement Agreement (Silvermex Resources Inc), Memorandum of Agreement (First Majestic Silver Corp)
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement and for Extendicare to file the Arrangement Filings in order to give effect to the Arrangement shall be subject to the satisfaction, on or before the Effective Date, satisfaction of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermexconditions:
(a) the Arrangement Interim Order shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained granted in form and terms substance satisfactory to each of Silvermex and First Majesticthe Parties, acting reasonably, not later than September 30, 2006 or such later date as the Parties may agree and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, the Parties on appeal or otherwise;
(b) the Arrangement Resolution shall have been approved by not less than two-thirds of the votes cast by the Shareholders, in person or by proxy, at the Meeting, with the Extendicare Multiple Voting Shares and Extendicare Subordinate Voting Shares, each being entitled to vote separately as a class;
(c) the Final Order approving the Arrangement shall have been obtained from the Court in form and substance satisfactory to the Parties;
(d) the Articles of Arrangement, together with a copy of the Plan of Arrangement and the Final Order and such other materials as may be required by the Director, in form and substance satisfactory to the Parties, shall have been filed with the Director in accordance with subsection 192(6) of the CBCA;
(e) all necessary consents, orders, rulings, approvals, opinions and assurances, including regulatory, judicial, third party and advisor opinions, approvals and orders, required for the completion of the transactions provided for in the Arrangement Agreement and the Plan of Arrangement shall have been obtained or received;
(f) no action shall have been instituted and be continuing on the Effective Date for an injunction to restrain, a declaratory judgment in respect of, or damages on account of, or relating to, the Arrangement, there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this the Arrangement Agreement and there no cease trading or similar order with respect to any securities of any of the Parties shall be have been issued and remain outstanding;
(g) all Options not exercised prior to the Meeting shall have been cancelled by Extendicare;
(h) none of the consents, orders, rulings, decisions, approvals, opinions or assurances required for the implementation of the Arrangement shall contain terms or conditions or require undertakings or security deemed unsatisfactory or unacceptable by any of the Parties, each acting reasonably;
(i) no proceeding (other than an appeal made in connection law, regulation or policy shall have been proposed, enacted, promulgated or applied which interferes or is inconsistent with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with Arrangement, including any material change to the terms hereof income tax laws of Canada or the United States, or any province, state or territory thereof, or which would otherwise have a material adverse effect upon Shareholders, Extendicare or the REIT Group if the Arrangement is completed;
(j) the conditional approval of the TSX of the listing of the Extendicare Common Shares issuable under the Plan of Arrangement and the REIT Units to be inconsistent with issued pursuant to the Regulatory Approvals which Arrangement (and upon exchange of the Exchangeable LP Units) shall have been obtained, subject only to the filing of required documents which cannot be filed prior to the Effective Date;
(ek) the Pre-Arrangement Transactions shall have been completed;
(l) Shareholders holding more than 1% of the outstanding Extendicare Shares shall not have exercised their Dissent Rights;
(m) Shareholders who immediately prior to the Effective Time are not resident in Canada within the meaning of the Income Tax Act (Canada) (based on reasonable evidence available to the board of directors of Extendicare) and who are to receive REIT Units under the Arrangement shall not, immediately following Closing, own in excess of 40% of all then outstanding REIT Units;
(n) this Agreement shall not have been terminated pursuant to under Article 65;
(fo) Silvermex the Registration Statement shall have received any required approval of been declared effective by the TSX to the transactions contemplated hereinUnited States Securities and Exchange Commission;
(gp) the First Majestic Shares issuable (i) pursuant to the Arrangement Separation Agreement and (ii) upon exercise of the Replacement Warrants from time to time, Tax Allocation Agreement shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonablyentered into; and
(jq) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation conditional approval of the Arrangement and New York Stock Exchange to the other transactions contemplated herein, listing of the failure shares of which Class A common stock of ALC to obtain or be distributed pursuant to the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex ALC Distribution shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent obtained, subject only to the Obligations filing of First Majestic. The obligations of First Majestic required documents which cannot be filed prior to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunder.
Appears in 3 contracts
Sources: Arrangement Agreement (Extendicare Real Estate Investment Trust), Arrangement Agreement (Assisted Living Concepts Inc), Arrangement Agreement (Assisted Living Concepts Inc)
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement shall be Arrangement are subject to the satisfactionfulfillment, on or before the Effective DateTime, of each of the following conditions precedent, each of which may only be waived by waived, in whole or in part, with the mutual consent of First Majestic West Fraser and SilvermexNorbord:
(a) the Arrangement Norbord Shareholder Approval shall have been approved obtained at the Silvermex Norbord Meeting by not less than two-thirds of in accordance with the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2Interim Order, applicable Law and this Agreement;
(b) the Arrangement West Fraser Shareholder Approval shall have been approved obtained at the Silvermex West Fraser Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Orderapplicable Law and this Agreement;
(c) the Interim Order and the Final Order shall each have been obtained on terms consistent with this Agreement and in form and terms substance satisfactory to each of Silvermex and First MajesticParty, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Partyof the Parties, acting reasonably, on appeal or otherwise;
(d) there the TSX shall not be in force any order or decree restraining or enjoining have conditionally approved the consummation listing thereon of the transactions contemplated by this Agreement West Fraser Shares to be issued as the Consideration pursuant to the Arrangement and there shall be no proceeding (other than an appeal made in connection with the Arrangement)West Fraser Shares issuable on the exercise of the Replacement Options, of a judicial or administrative nature or otherwisesubject, in progress or threatened that relates each case, to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion satisfaction of customary listing conditions of the transactions contemplated by this Agreement in accordance with TSX;
(e) the terms hereof or would otherwise be inconsistent with the Key Regulatory Approvals which shall have been obtained;
(ef) this Agreement other than in connection with a Regulatory Action addressed in Section 6.1(g) below, there shall not exist any prohibition at Law, including a cease trade order, injunction or other prohibition or order at Law or under applicable legislation, and there shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods action taken under the Securities Laws of Canada or the United States except as may be imposed any Law by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental EntityEntity or other regulatory authority or any other Person, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement makes illegal or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Datedirectly or indirectly enjoins, signed on behalf of Silvermex by two directors prevents or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of prohibits Norbord or West Fraser from consummating the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunder.
Appears in 3 contracts
Sources: Arrangement Agreement (Norbord Inc.), Arrangement Agreement (Norbord Inc.), Arrangement Agreement
Mutual Conditions Precedent. The respective obligations of the Parties to complete consummate the transactions contemplated by this Agreement shall be herein are subject to the satisfaction, on or before the Effective Closing Date, of the following conditions precedent, each any of which may only be waived by the mutual consent of First Majestic and Silvermexthe Parties without prejudice to their rights to rely on any other of such conditions:
(a) the Arrangement shareholders of the Purchaser shall have been approved at the Silvermex Meeting by not less than two-thirds creation of the votes cast by Consideration Shares in accordance with the Silvermex Securityholders who are represented in person or by proxy thereat in provisions of the manner contemplated by Article 2Business Corporations Act (British Columbia);
(b) there shall not exist any prohibition under Applicable Laws against the Arrangement shall have been approved at consummation of the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim OrderTransaction;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement Transaction;
(d) all Consents, orders and there approvals, including, without limitation, shareholder, stock exchange, and regulatory approvals, required or necessary or desirable for the completion of the Transaction shall be have been obtained or received from the persons having jurisdiction in the circumstances, all on terms satisfactory to each of the Parties, acting reasonably;
(e) since the date hereof to the Closing Date, no proceeding Applicable Laws or proposed Applicable Laws, any change in any Applicable Laws, or the interpretation or enforcement of any Applicable Laws shall have been introduced, enacted or announced (other than an appeal made including the introduction, enactment or announcement of any Applicable Laws respecting taxes or the Environment or any change therein or in connection with the Arrangementinterpretation or enforcement thereof), the effect of a judicial which will be to prevent or administrative nature or otherwise, in progress or threatened that relates to or results from materially impair the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;herein; and
(ef) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act accordance with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderSection 12.01.
Appears in 2 contracts
Sources: Share Purchase Agreement (Verdera Energy Corp.), Share Purchase Agreement (enCore Energy Corp.)
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement shall be Arrangement are subject to the satisfaction, fulfillment of each of the following conditions precedent on or before the Effective Date, of Time or the following conditions precedent, waiver by each of which may only be waived Correvio and Purchaser to the extent permitted by applicable Law and without prejudice to their right to rely on the mutual consent fulfilment of First Majestic and Silvermexany other of such conditions:
(a) the Arrangement shall have Interim Order having been approved at granted on terms consistent with this Agreement and the Silvermex Meeting by Interim Order not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented having been set aside or modified in person a manner unacceptable to either Party, acting reasonably, on appeal or by proxy thereat in the manner contemplated by Article 2otherwise;
(b) the Correvio Arrangement shall have Resolution having been approved at passed by the Silvermex Meeting Correvio Shareholders in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Final Order having been granted on terms consistent with this Agreement and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have having been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force have been no action taken under any order applicable Law or decree restraining by any Governmental Entity of competent jurisdiction which make it illegal or enjoining otherwise directly or indirectly restrains, enjoins or prohibits the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedArrangement;
(e) the Articles of Arrangement to be filed with the Director in accordance with this Agreement shall be in form and substance acceptable to the Parties, each acting reasonably;
(f) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;in accordance with its terms; and
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, Key Regulatory Approvals shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderobtained.
Appears in 2 contracts
Sources: Arrangement Agreement (Correvio Pharma Corp.), Arrangement Agreement
Mutual Conditions Precedent. The respective obligations obligation of the Parties parties hereto to complete the transactions contemplated by this Agreement Agreement, including the Arrangement, the obligation of Chemesis to file the Articles of Arrangement and the obligation of each of Chemesis and Spinco to take such other action as is necessary or desirable to give effect to the Arrangement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermexconditions:
(a) the Arrangement Interim Order shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented granted in person or by proxy thereat in the manner contemplated by Article 2form and substance satisfactory to Chemesis;
(b) the Arrangement Resolution, with or without amendment, shall have been approved at the Silvermex Meeting Meeting, in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order Court shall have determined that the terms and conditions of the Arrangement are procedurally and substantively fair to the Chemesis Securityholders and the Final Order shall each have been obtained granted in form and terms substance satisfactory to each of Silvermex and First Majestic, acting reasonablyChemesis, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonablyChemesis, on appeal or otherwise;
(d) the securities to be issued in the United States pursuant to the Arrangement shall be issued in accordance with the Section 3(a)(10) Exemption;
(e) all governmental, court, regulatory, third party and other approvals, consents, expiry of waiting periods, waivers, permits, exemptions, orders and agreements and all amendments and modifications to, and terminations of, agreements, indentures and arrangements considered by Chemesis to be necessary or desirable for the Arrangement to become effective shall have been obtained or received on terms that are satisfactory to Chemesis;
(f) no action will have been instituted and be continuing on the Effective Date for an injunction to restrain, a declaratory judgment in respect of, or damages on account of or relating to the Arrangement and there shall will not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding cease trading or similar order with respect to any securities of any of the parties will have been issued and remain outstanding;
(other than an appeal made in connection g) none of the consents, orders, rulings, approvals or assurances required for the implementation of the Arrangement will contain terms or conditions or require undertakings or security deemed unsatisfactory or unacceptable by Chemesis;
(h) no law, regulation or policy will have been proposed, enacted, promulgated or applied that interferes or is inconsistent with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;Arrangement; and
(ei) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to timesection 6.2 hereof, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and unless such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which condition is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderhereto.
Appears in 2 contracts
Sources: Arrangement Agreement (Chemesis International Inc.), Arrangement Agreement
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement shall be Agreement, and in particular the Arrangement, are subject to the satisfactionfulfillment, on or before the Effective DateDate or such other time specified herein, of each of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermexconditions:
(a) 6.1.1 the Arrangement Interim Order shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained granted in form and terms content satisfactory to each of Silvermex and First Majesticthe Parties, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Partythe Parties, acting reasonably, on appeal or otherwise;
(d) there 6.1.2 the Arrangement Resolution and the Comamtech Continuance Resolution shall have been passed at the Meeting by not less than the Required Vote;
6.1.3 the Corporation Shareholders shall have approved the Amalgamation;
6.1.4 the Final Order shall have been granted in form and content satisfactory to each of the Parties, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to the Parties, acting reasonably, on appeal or otherwise;
6.1.5 the Articles of Arrangement shall be in force form and substance satisfactory to each of the Parties, acting reasonably, and be capable of being filed in sufficient time to ensure that the Arrangement may become effective on or prior to the Outside Date;
6.1.6 The approval by the OSC and the Minister of Finance (Ontario) of the Comamtech Continuance;
6.1.7 all Regulatory Approvals shall have been obtained or concluded or, in the case of waiting or suspensory periods, expired or been terminated;
6.1.8 no Governmental Entity shall have enacted, issued, promulgated, applied for (or advised either the Corporation or Comamtech that it has determined to make such application), enforced or entered any order Law (whether temporary, preliminary or decree restraining permanent) that (i) restrains, enjoins or enjoining otherwise prohibits consummation of, or dissolves, the Arrangement or the other transactions contemplated by this Agreement;
6.1.9 the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;▇▇▇▇▇▇ Transaction; and
(e) 6.1.10 this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majesticterminated. The obligations of First Majestic to complete conditions in this Section 6.1 are for the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, mutual benefit of each of the following conditions precedent (Parties and may be asserted by each of which is for the exclusive benefit Parties regardless of First Majestic and the circumstances or may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material (each Party with respect to itself) in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall beits sole discretion, in all material respectswhole or in part, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided at any time and from time to First Majestic, on or before time without prejudice to any other rights which the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic Parties may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderhave.
Appears in 2 contracts
Sources: Arrangement Agreement (DecisionPoint Systems, Inc.), Arrangement Agreement (Comamtech Inc.)
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement Transaction shall be subject to the satisfaction, on or before the Effective DateTime, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic Purchaser and SilvermexRoyal:
(a) the Arrangement Transaction Resolution shall have been approved by 66 2/3% of the votes cast on the Transaction Resolution by the Royal Shareholders present in person or by proxy at the Royal Meeting;
(b) the Transaction shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Royal Meeting in accordance with any conditions in addition to those set out in Section 5.1(a6.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained on terms consistent with this Agreement and in a form and terms satisfactory to each of Silvermex and First Majesticthe Parties, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Partysuch Parties, acting reasonably, on appeal or otherwise;
(d) there the Articles of Arrangement shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by content consistent with this Agreement and there shall be no proceeding (other than an appeal made in connection with form satisfactory to the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedParties acting reasonably;
(e) no Governmental Entity shall have enacted, issued, promulgated, enforced or entered any Law which is then in effect and has the effect of making the Transaction illegal or otherwise preventing or prohibiting consummation of the Transaction;
(f) (i) the Regulatory Approvals shall have been obtained; (ii) any consent, approval or waiting period under the antitrust or competition legislation of any other relevant jurisdiction applicable to the Transaction shall have been obtained or shall have expired or been terminated, as applicable; and (iii) the approvals or notifications that may be required under any applicable Law of any country outside Canada and the United States shall have been obtained or made, except, in the case of this clause (iii), where the failure to so obtain or make would not have a Material Adverse Effect on Royal or Purchaser; and
(g) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderArticle 8.
Appears in 2 contracts
Sources: Arrangement Agreement (Royal Group Technologies LTD), Arrangement Agreement (Georgia Gulf Corp /De/)
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement shall be Arrangement are subject to the satisfaction, or mutual waiver by the Parties, on or before the Effective Date, of each of the following conditions precedentconditions, each of which are for the mutual benefit of the Parties and which may only be waived waived, in whole or in part, by the mutual consent of First Majestic and Silvermexthe Parties at any time:
(a) the The Arrangement Resolution shall have been approved and adopted at the Silvermex Company Meeting by not less than two-thirds of in accordance with the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;Interim Order.
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the The Interim Order and the Final Order shall each have been obtained in form and on terms satisfactory to each of Silvermex and First Majestic, acting reasonablyconsistent with this Agreement, and shall not have been set aside or modified in a manner unacceptable to either any Party, acting reasonably, on appeal or otherwise;.
(c) The Articles of Arrangement to be sent to the Director under the OBCA in accordance with this Agreement shall be in a form and content satisfactory to the Parties, each acting reasonably.
(d) there No Governmental Entity shall not be have enacted, issued, promulgated, enforced or entered any Law which is then in force any order effect and has the effect of making the execution, delivery or decree restraining performance of this Agreement illegal or enjoining otherwise preventing or prohibiting the consummation of the transactions contemplated by this Agreement and there Agreement.
(e) No legal or regulatory action or proceeding shall have been commenced by any person that would reasonably be no proceeding (other than an appeal made in connection with the Arrangement)expected to enjoin, of a judicial restrict or administrative nature or otherwise, in progress or threatened that relates to or results from prohibit the transactions contemplated by this Agreement that would, if successful, result Agreement.
(f) The Stock Exchange Approval shall be in an order or ruling that would preclude completion force and shall not have been modified in any material respect without the consent of the transactions contemplated by this Agreement Parties.
(g) Canopy Growth and the Company shall have executed and delivered a mutual release, substantially in accordance the form attached hereto as Schedule C, releasing each other of any and all claims in connection with the terms hereof or would otherwise be inconsistent Trademark License.
(h) CRC and Tweed NB shall have executed and delivered a mutual release, substantially in the form attached hereto as Schedule D, releasing each other of any and all claims in connection with the Regulatory Approvals which have been obtained;Tweed NB Agreement.
(ei) this This Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it accordance with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderterms.
Appears in 2 contracts
Sources: Arrangement Agreement (Canopy Growth Corp), Arrangement Agreement
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement Transaction shall be subject to the satisfaction, on or before the Effective DateClosing Time, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermexthe Parties:
(a) the Arrangement Resolution shall have been approved by 662/3% of the votes cast on the Arrangement Resolution by the Company Shareholders present in person or by proxy at the Company Meeting;
(b) at the Symmetry Meeting, in accordance with the amended and restated certificate of incorporation of Symmetry, (i) the acquisition of the Company by Symmetry shall have been approved by a majority of the shares of common stock voted by the holders thereof; and (ii) Symmetry Stockholders owning no more than 29.99999% of the outstanding Symmetry shares issued under its initial public offering both vote against approval of the acquisition of the Company by Symmetry and properly exercise their conversion rights attaching to the Symmetry shares;
(c) the Transaction shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Company Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(cd) the Interim Order and the Final Order shall each have been obtained on terms consistent with this Agreement and in a form and terms satisfactory to each of Silvermex and First Majesticthe Parties, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Partysuch Parties, acting reasonably, on appeal or otherwise;
(de) the Articles of Arrangement shall be in substance consistent with this Agreement and in form satisfactory to the Parties acting reasonably;
(f) there shall not be in force any Law, final and non-appealable injunction, order or decree prohibiting, restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedTransaction;
(eg) the Specified Regulatory Approvals shall have been obtained or satisfied on terms and conditions satisfactory to the Parties acting reasonably;
(h) all necessary action shall have been taken by the respective parties to the Asset Sales, the Logistics Service Agreement and the Sale Leaseback Transaction to enter into and consummate the Asset Sales, the Logistics Service Agreement and the Sale Leaseback Transaction (for greater clarity, the Parties acknowledge the Sale Leaseback Transaction and the Logistics Service Agreement shall be entered into and become effective at the time set forth in the Plan of Arrangement); and
(i) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunder.
Appears in 2 contracts
Sources: Arrangement Agreement (Symmetry Holdings Inc), Arrangement Agreement (Symmetry Holdings Inc)
Mutual Conditions Precedent. The respective obligations of the Parties to complete the Arrangement and the transactions contemplated by this Agreement shall be are subject to the satisfactionfulfillment, on or before the Effective DateTime, of each of the following conditions precedent, each of which may only be waived by with the mutual consent of First Majestic and Silvermexthe Parties:
(a) the Arrangement Resolution shall have been approved by the Securityholders at the Silvermex Company Meeting by not less than two-thirds of in accordance with the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2Interim Order and BCBCA;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Orderreceipt of all Key Regulatory Approvals;
(c) the Interim Order and the Final Order shall each have been obtained in form and on terms satisfactory to each of Silvermex and First Majestic, acting reasonablyconsistent with this Agreement, and shall not have been set aside or modified in a manner unacceptable to either Partythe Company and the Purchaser, each acting reasonably, on appeal or otherwise;
(d) there no applicable Law shall not be in force any order or decree restraining or enjoining effect that makes the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with Arrangement illegal or otherwise prohibits or enjoins the Company or the Purchaser from consummating the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;
(e) this Agreement shall not have been terminated pursuant the Arrangement Issued Securities to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) be issued pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdictionSection 3(a)(10) thereof;
(if) all Antitrust Clearances no Proceeding shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of be pending or overtly threatened by any Governmental EntityEntity seeking an injunction, and the expiry of any waiting periodsjudgment, in connection with, decree or required other order to permit prevent or challenge the consummation of the Arrangement and or the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) this Agreement shall not have been obtained or received on terms which are acceptable to First Majestic, acting reasonablyterminated in accordance with its terms;
(h) each the Note Conversion shall have been completed in accordance with the terms of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each Plan of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunderArrangement; and
(i) Silvermex shall the Parent Shares to be issued pursuant to the Arrangement or upon the exchange of Exchangeable Shares shall, subject to customary conditions, have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely been approved for listing on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderNASDAQ.
Appears in 1 contract
Sources: Arrangement Agreement (Genius Brands International, Inc.)
Mutual Conditions Precedent. The respective obligations obligation of the Parties parties hereto to complete the transactions contemplated by this Agreement Agreement, including the Arrangement, the obligation of G2 to file the Articles of Arrangement and the obligation of each of G2 and G3 to take such other action as is necessary or desirable to give effect to the Arrangement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermexconditions:
(a) the Interim Order shall have been granted in form and substance satisfactory to G2;
(b) each of the Stated Capital Resolution and the Arrangement Resolution, with or without amendment, shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting Meeting, in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order Court shall have determined that the terms and conditions of the Arrangement are procedurally and substantively fair to the G2 Shareholders and the Final Order shall each have been obtained granted in form and terms substance satisfactory to each of Silvermex and First Majestic, acting reasonablyG2, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonablyG2, on appeal or otherwise;
(d) the G3 Shares to be issued in the United States pursuant to the Arrangement shall be issued in accordance with and exempt from registration requirements under applicable exemptions from registration under the U.S. Securities Act;
(e) all governmental, court, regulatory, third party and other approvals, consents, expiry of waiting periods, waivers, permits, exemptions, orders and agreements and all amendments and modifications to, and terminations of, agreements, indentures and arrangements considered by G2 to be necessary or desirable for the Arrangement to become effective shall have been obtained or received on terms that are satisfactory to G2;
(f) no action will have been instituted and be continuing on the Effective Date for an injunction to restrain, a declaratory judgment in respect of, or damages on account of or relating to the Arrangement and there shall will not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding cease trading or similar order with respect to any securities of any of the parties will have been issued and remain outstanding;
(other than an appeal made in connection g) none of the consents, orders, rulings, approvals or assurances required for the implementation of the Arrangement will contain terms or conditions or require undertakings or security deemed unsatisfactory or unacceptable by G2;
(h) no law, regulation or policy will have been proposed, enacted, promulgated or applied that interferes or is inconsistent with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;Arrangement; and
(ei) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderSection 6.2 hereof.
Appears in 1 contract
Sources: Arrangement Agreement
Mutual Conditions Precedent. The respective obligations of the Parties to complete consummate the transactions contemplated by this Agreement shall be hereby, and in particular the Arrangement, are subject to the satisfaction, on or before the Effective DateDate or such other time specified, of the following conditions precedentconditions, each any of which may only be waived by the mutual written consent of First Majestic and Silvermexsuch Parties without prejudice to their right to rely on any other of such conditions:
(a) the Arrangement Interim Order shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained granted in form and terms substance satisfactory to each of Silvermex and First Majesticthe Parties, acting reasonably, and such order shall not have been set aside or modified in a manner unacceptable to either Partythe Parties, acting reasonably, on appeal or otherwise;
(b) the Arrangement Resolution shall have been passed by the PUF Shareholders at the PUF Meeting in accordance with the Arrangement Provisions, the constating documents of PUF, the Interim Order and the requirements of any applicable regulatory authorities;
(c) the Arrangement and this Agreement, with or without amendment, shall have been approved by the Vapetronix Shareholder to the extent required by, and in accordance with, the Arrangement Provisions and the constating documents of Vapetronix;
(d) the Final Order shall have been granted in form and substance satisfactory to the Parties, acting reasonably;
(e) all other consents, orders, regulations and approvals, including regulatory and judicial approvals and orders required or necessary or desirable for the completion of the transactions provided for in this Agreement and the Plan of Arrangement shall have been obtained or received from the persons, authorities or bodies having jurisdiction in the circumstances, each in form acceptable to the Parties;
(f) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;; and
(eg) this Agreement shall not have been terminated pursuant to under Article 6;
(f) Silvermex shall have received any required approval of 7. Except for the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to timeconditions set forth in this §5.1 which, shall have been authorized for listing on the TSX and the NYSEby their nature, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will may not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consentswaived, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated other conditions in this §5.1 may be waived, either in whole or in part, by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of Parties, as the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall case may be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with at its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderdiscretion.
Appears in 1 contract
Sources: Arrangement Agreement
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Closing Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic Mining and Silvermexthe Chalice Parties:
(a) the Arrangement Chalice Shareholder Approval shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2obtained;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement)proceeding, of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;
(ec) this Agreement shall not have been terminated pursuant to Article 68;
(fd) Silvermex Chalice shall have received any required approval of the TSX TSX, the ASX and, if required, the Australian Securities Authority or any applicable Canadian Securities Authority to the transactions contemplated herein;
(ge) First Mining shall have received any required approval of the TSX-V to the transactions contemplated herein;
(f) the First Majestic Consideration Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSETSX-V, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(jg) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement Transaction and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic Mining or Silvermex the Subsidiary shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic Mining and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderChalice Parties.
Appears in 1 contract
Sources: Share Purchase Agreement (First Mining Finance Corp.)
Mutual Conditions Precedent. The respective obligations of the Parties hereto to complete each step of the transactions Business Combination contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived only by the mutual consent of First Majestic and Silvermexthe Parties:
(a) each Party being satisfied with the Arrangement shall have been approved at the Silvermex Meeting by not less than two-thirds results of a complete due diligence review of the votes cast other Parties by the Silvermex Securityholders who are represented in person or by proxy thereat June 30, 2007, following which, in the manner contemplated by Article 2absence of notice of termination, such condition is deemed to be satisfied;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedBusiness Combination;
(ec) this Agreement shall not have been terminated pursuant to Article 69;
(d) all Regulatory Approvals and corporate approvals shall have been obtained;
(e) each Party shall not have entered into any transaction or contract which would have a material effect on the financial and operational condition, or the assets of each Party, excluding those transactions or contracts undertaken in the ordinary course of business, without first discussing and obtaining the approval of the other Parties;
(f) Silvermex the board and the shareholders of Park Place shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement adopted all necessary resolutions and (ii) upon exercise of the Replacement Warrants from time to time, all other necessary corporate actions shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed taken by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required Park Place to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):Business Combination; and
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(bg) the representations ST and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board Subco boards shall have adopted all necessary resolutions, resolutions and all other necessary corporate action actions shall have been taken by Silvermex, ST and Subco to permit the consummation of the Arrangement;
(e) holders of more than 5% Business Combination; If any of the issued and outstanding Silvermex Shares above conditions shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending been complied with or threatened any suit, action or proceeding waived by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective DateCompletion Deadline or, written resignations effective as of if earlier, the Effective Timedate required for the performance thereof, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic then a Party may not rely on terminate this Agreement in circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of a breach of this Agreement by the Party terminating the Agreement. In the event that the failure to satisfy any one or more of the above conditions precedent as results from a basis for non-compliance material default by it with a Party of its obligations under this Agreement and if the condition such condition(s) precedent would have been satisfied but for such default, such defaulting Party shall not rely on such failure (to satisfy one or more of the above conditions) as a material default by First Majestic in complying basis for its own non-compliance with its obligations hereunderunder this Agreement.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties to complete the Arrangements and the other transactions contemplated by this Agreement shall be are subject to the satisfactionfulfillment, on or before the Effective DateTime, of each of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermex:
(a) the Arrangement Interim Order shall have been approved at granted in substance and form satisfactory to the Silvermex Meeting by Parties on terms consistent with this Agreement, and shall not less than two-thirds of have been set aside or materially modified in a manner unacceptable to the votes cast by Company or the Silvermex Securityholders who are represented in person Purchaser, each acting reasonably, on appeal or by proxy thereat in the manner contemplated by Article 2otherwise;
(b) the Arrangement Resolution shall have been approved by the Shareholders of record at the Silvermex Company Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order (including the Plan of Arrangement) shall each have been obtained granted in substance and form and terms satisfactory to each of Silvermex and First Majestic, acting reasonablythe Parties on terms consistent with this Agreement, and shall not have been set aside or materially modified in a manner unacceptable to either Partythe Company or the Purchaser, each acting reasonably, on appeal or otherwise;
(d) there the Articles of Arrangement shall not be in force any order or decree restraining or enjoining form and substance consistent with this Agreement, the Plan of Arrangement and the Final Order and shall be satisfactory to the Parties, each acting reasonably;
(e) no applicable Law shall be in effect that makes the consummation of the Arrangement or any other transactions contemplated herein, illegal or otherwise prohibits or enjoins the Company or the Purchaser from consummating the Arrangement or the other transactions contemplated by this Agreement Agreement;
(f) the Competition Act Approval, the CTA Clearance, the HSR Approval and there the Investment Canada Act Approval shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;; and
(eg) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval 8. The foregoing conditions are for the mutual benefit of the TSX to Company, on the transactions contemplated herein;
(g) one hand, and Purchaser, on the First Majestic Shares issuable (i) pursuant to other hand, and may be waived, in whole or in part, jointly by the Arrangement Company and (ii) upon exercise the Purchaser, at any time. If any of the Replacement Warrants from time to time, foregoing conditions precedent shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance not be complied with or waived by both of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except Parties as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, aforesaid on or before the Effective DateOutside Date then, subject to Section 6.5, either the Company or Purchaser may terminate this Agreement by written notice to the other Party in accordance with the procedures set forth in Article 8 in circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date Purchaser’s breach of this Agreement, in which the event such representations and warranties shall be true and correct in all material respects as of such earlier specified datea proposed termination by Purchaser, or except as affected by transactions contemplated or permitted by the Company’s breach of this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurredAgreement, in the judgment event of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) proposed termination by the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderCompany.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties parties hereto to complete the transactions contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic WSI, Capital Holdings and SilvermexCERI:
(a) the Arrangement shall have been approved at the Silvermex CERI Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders CERI Shareholders who are represented in person at the CERI Meeting or by proxy thereat CERI Shareholders in such other numbers as specified in the manner contemplated by Article 2Interim Order;
(b) the Arrangement shall have been approved at the Silvermex CERI Meeting in accordance with any conditions conditions, in addition to those set out in Section 5.1(a) ), which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex CERI and First MajesticWSI, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, such parties on appeal or otherwise;
(d) the Form S-3 shall have become effective under the 1933 Act and shall not be the subject of any stop order or proceedings seeking a stop order, and WSI shall have received all United States state securities or “blue sky” authorizations necessary to issue the WSI Common Shares;
(e) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, brought by a Governmental Entity in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Appropriate Regulatory Approvals which have been obtained;
(ef) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental EntityEntity (including the Appropriate Regulatory Approvals), and the expiry of any waiting periods, in connection with, or required to permit permit, the consummation of the Arrangement and the other transactions contemplated hereinArrangement, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic WSI, Capital Holdings or Silvermex CERI, as the case may be, shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfactionWSI, on Capital Holdings or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):CERI; and
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(fh) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) , seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderArrangement.
Appears in 1 contract
Sources: Arrangement Agreement (Capital Environmental Resource Inc)
Mutual Conditions Precedent. The respective obligations of the Parties XTRX and CCK hereto to complete the transactions Business Combination contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived only by the mutual consent of First Majestic XTRX and SilvermexCCK:
(a) CCK, upon completion of the Arrangement Business Combination, will meet the minimum original listing requirements of the CSE and the CSE shall have been conditionally approved at the Silvermex Meeting by not less than two-thirds listing of the votes cast by CCK Shares to be issued in connection with the Silvermex Securityholders who are represented in person or by proxy thereat in Business Combination on the manner contemplated by Article 2CSE following the Business Combination, subject to completion of the Business Combination and completion of the customary listing requirements of the CSE;
(b) the Arrangement CCK shall have been approved at received conditional approval for delisting from the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim OrderNEX;
(c) CCK, upon completion of the Interim Order and Business Combination, will delist the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwiseCCK Shares from the NEX;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedBusiness Combination;
(e) this Agreement shall not have been terminated pursuant to Article 68;
(f) Silvermex all Regulatory Approvals and corporate approvals shall have received any required approval of the TSX to the transactions contemplated hereinbeen obtained;
(g) each Party shall not have entered into any transaction or contract which would have a material effect on the First Majestic Shares issuable (i) pursuant to financial and operational condition, or the Arrangement assets of each Party, excluding those transactions or contracts undertaken in the ordinary course of business, without first discussing and (ii) upon exercise obtaining the approval of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuanceother Party;
(h) the issuance requisite approval of the First Majestic Shares and Replacement Warrants will be exempt from XTRX Shareholders for the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances Amalgamation shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunderobtained; and
(i) Silvermex the requisite approval of the CCK Shareholders for the Business Combination shall have provided to First Majestic, been obtained. If any of the above conditions shall not have been complied with or waived by XTRX and CCK on or before the Effective DateCompletion Deadline or, written resignations effective as of if earlier, the Effective Timedate required for the performance thereof, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic then a Party may not rely on terminate this Agreement in circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of a breach of this Agreement by the Party terminating the Agreement. In the event that the failure to satisfy any one or more of the above conditions precedent as results from a basis for non-compliance material default by it with a Party of its obligations under this Agreement and if the condition such condition(s) precedent would have been satisfied but for such default, such defaulting Party shall not rely on such failure (to satisfy one or more of the above conditions) as a material default by First Majestic in complying basis for its own non-compliance with its obligations hereunderunder this Agreement.
Appears in 1 contract
Sources: Business Combination Agreement
Mutual Conditions Precedent. The respective obligations of the Parties hereto to complete the transactions Business Combination contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived only by the mutual consent of First Majestic and Silvermexthe Parties:
(a) Century, upon completion of the Arrangement Business Combination, will meet the minimum original listing requirements of the CSE and the CSE shall have been conditionally approved at the Silvermex Meeting by not less than two-thirds listing of the votes cast by Century Class B Shares on the Silvermex Securityholders who are represented in person or by proxy thereat in CSE, subject to completion of the manner contemplated by Article 2Business Combination and completion of the customary listing requirements of the CSE;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedBusiness Combination;
(ec) this Agreement shall not have been terminated pursuant to Article 68;
(d) all Regulatory Approvals and corporate approvals shall have been obtained;
(e) each Party shall not have entered into any transaction or contract which would have a material effect on the financial and operational condition, or the assets of each Party, excluding those transactions or contracts undertaken in the ordinary course of business, without first discussing and obtaining the approval of the other Party;
(f) Silvermex shall have received any required the requisite approval of the TSX to FV Pharma Shareholders of the transactions contemplated hereinAmalgamation shall have been obtained;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise requisite approval of the Replacement Warrants from time to time, Century Shareholders for the Century Meeting Matters and the Amalgamation shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;obtained; and
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances Financing shall have been obtained on terms and conditions satisfactory to each completed for maximum gross proceeds of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of $34 million. If any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex above conditions shall not have been obtained complied with or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to waived by the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, Parties on or before the Effective DateCompletion Deadline or, of each of if earlier, the following conditions precedent (each of which is date required for the exclusive benefit of First Majestic and performance thereof, then a Party may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under terminate this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of a breach of this Agreement by the Party terminating the Agreement. In the event that the failure to satisfy any one or more of the above conditions precedent as results from a basis for non-compliance material default by it with a Party of its obligations under this Agreement and if the condition such condition(s) precedent would have been satisfied but for such default, such defaulting Party shall not rely on such failure (to satisfy one or more of the above conditions) as a material default by First Majestic in complying basis for its own non-compliance with its obligations hereunderunder this Agreement.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties hereto to complete each step of the transactions Business Combination contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived only by the mutual consent of First Majestic and Silvermexthe Parties:
(a) each Party being satisfied with the Arrangement shall have been approved at the Silvermex Meeting by not less than two-thirds results of a complete due diligence review of the votes cast other Parties by the Silvermex Securityholders who are represented in person or by proxy thereat November 10, 2010, following which, in the manner contemplated by Article 2absence of notice of termination, such condition is deemed to be satisfied;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedBusiness Combination;
(ec) this Agreement shall not have been terminated pursuant to Article 68;
(d) all Regulatory Approvals and corporate approvals shall have been obtained;
(e) each Party shall not have entered into any transaction or contract which would have a material effect on the financial and operational condition, or the assets of each Party, excluding those transactions or contracts undertaken in the ordinary course of business, without first discussing and obtaining the approval of the other Parties;
(f) Silvermex the board and the shareholders of ecoTECH shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement adopted all necessary resolutions and (ii) upon exercise of the Replacement Warrants from time to time, all other necessary corporate actions shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed taken by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required ecoTECH to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):Business Combination; and
(ag) all covenants SSKY and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board Subco boards shall have adopted all necessary resolutions, resolutions and all other necessary corporate action actions shall have been taken by Silvermex, SSKY and Subco to permit the consummation of the Arrangement;
(e) holders of more than 5% Business Combination; If any of the issued and outstanding Silvermex Shares above conditions shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending been complied with or threatened any suit, action or proceeding waived by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective DateCompletion Deadline or, written resignations effective as of if earlier, the Effective Timedate required for the performance thereof, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic then a Party may not rely on terminate this Agreement in circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of a breach of this Agreement by the Party terminating the Agreement. In the event that the failure to satisfy any one or more of the above conditions precedent as results from a basis for non-compliance material default by it with a Party of its obligations under this Agreement and if the such condition (s) precedent would have been satisfied but for such default, such defaulting Party shall not rely on such failure (to satisfy one or more of the above conditions) as a material default by First Majestic in complying basis for its own non-compliance with its obligations hereunderunder this Agreement.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties Weekend and Open Source to complete the transactions contemplated by this Agreement shall be subject to the satisfaction, on fulfilment or before the Effective Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermex:
(a) the Arrangement shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;
(e) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):conditions:
(a) all covenants and agreements Weekend has continued under the provisions of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respectsAct;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic Amalgamation shall have received a certificate been approved by the shareholders of Silvermex addressed to First Majestic Open Source and dated the Effective Dateshareholders of Weekend in accordance with the Act and the Canada Business Corporations Act (Federal), signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Daterespectively and any applicable regulatory requirements;
(c) between the date hereof and the Effective Date, there shall not have occurredArticles of Amalgamation, in the judgment of First Majesticform and substance satisfactory to Weekend and Open Source, acting reasonably, a Material Adverse Change to Silvermexshall have been accepted for filing by the Registrar;
(d) the Silvermex Board CSE shall have adopted all necessary resolutions, conditionally approved this transaction and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation additional listing thereon of the ArrangementAmalco Common Shares to be issued in connection with the Amalgamation as of the Effective Date, or as soon as practicable thereafter, subject to compliance with the usual requirements of the CSE;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending in force any order or threatened decree of a court of competent jurisdiction or of any suitfederal, action provincial, municipal or proceeding by any Governmental Entityother governmental department, in each case that has a reasonable likelihood of success:
(i) seeking to restrain commission, board, agency or prohibit regulatory body restraining, interfering with or enjoining the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunderAgreement; and
(if) Silvermex all necessary regulatory and similar reviews, rulings, orders, consents and approvals necessary under applicable legislation, regulation or policy shall with respect to the transactions contemplated hereby have provided to First Majestic, on been completed or before obtained. The foregoing conditions precedent shall be for the Effective Date, written resignations effective as mutual benefit of the Effective Time, from all directors parties hereto and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any be waived in whole or in part unless waived by each of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderthem.
Appears in 1 contract
Sources: Amalgamation Agreement
Mutual Conditions Precedent. The respective obligations of the Parties to complete consummate the transactions contemplated by this Agreement shall be hereby, and in particular the Arrangement, are subject to the satisfaction, on or before the Effective DateDate or such other time specified, of the following conditions precedentconditions, each any of which may only be waived by the mutual written consent of First Majestic and Silvermexsuch Parties without prejudice to their right to rely on any other of such conditions:
(a) the Arrangement Interim Order shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained granted in form and terms substance satisfactory to each of Silvermex and First Majesticthe Parties, acting reasonably, and such order shall not have been set aside or modified in a manner unacceptable to either Partythe Parties, acting reasonably, on appeal or otherwise;
(b) the Arrangement Resolution shall have been passed by the ▇▇▇▇▇ Shareholders at the ▇▇▇▇▇ Meeting in accordance with the Arrangement Provisions, the constating documents of ▇▇▇▇▇, the Interim Order and the requirements of any applicable regulatory authorities;
(c) the Arrangement and this Agreement, with or without amendment, shall have been approved by the 341 Shareholder(s), the 343 Shareholder(s), the 344 Shareholder(s), the 345 Shareholder(s), and the 346 Shareholder(s), to the extent required by, and in accordance with, the Arrangement Provisions and the constating documents of each of 341, 343, 344, 345, and 346;
(d) the Final Order shall have been granted in form and substance satisfactory to the Parties, acting reasonably;
(e) all other consents, orders, regulations and approvals, including regulatory and judicial approvals and orders required or necessary or desirable for the completion of the transactions provided for in this Agreement and the Plan of Arrangement shall have been obtained or received from the persons, authorities or bodies having jurisdiction in the circumstances, each in form acceptable to the Parties;
(f) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;; and
(eg) this Agreement shall not have been terminated pursuant to under Article 6;
(f) Silvermex shall have received any required approval of 7. Except for the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to timeconditions set forth in this §5.1 which, shall have been authorized for listing on the TSX and the NYSEby their nature, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will may not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consentswaived, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated other conditions in this §5.1 may be waived, either in whole or in part, by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of Parties, as the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall case may be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with at its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderdiscretion.
Appears in 1 contract
Sources: Arrangement Agreement
Mutual Conditions Precedent. The respective obligations obligation of the Parties parties hereto to complete the transactions contemplated by this Agreement Agreement, including the Arrangement, the obligation of Chemesis to file the Articles of Arrangement and the obligation of each of Chemesis and IMC to take such other action as is necessary or desirable to give effect to the Arrangement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermexconditions:
(a) the Arrangement Interim Order shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented granted in person or by proxy thereat in the manner contemplated by Article 2form and substance satisfactory to Chemesis;
(b) the Arrangement Resolution, with or without amendment, shall have been approved at the Silvermex Meeting Meeting, in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order Court shall have determined that the terms and conditions of the Arrangement are procedurally and substantively fair to the Chemesis Securityholders and the Final Order shall each have been obtained granted in form and terms substance satisfactory to each of Silvermex and First Majestic, acting reasonablyChemesis, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonablyChemesis, on appeal or otherwise;
(d) the securities to be issued in the United States pursuant to the Arrangement shall be issued in accordance with and exempt from registration requirements under applicable exemptions from registration under the U.S. Securities Act;
(e) all governmental, court, regulatory, third party and other approvals, consents, expiry of waiting periods, waivers, permits, exemptions, orders and agreements and all amendments and modifications to, and terminations of, agreements, indentures and arrangements considered by Chemesis to be necessary or desirable for the Arrangement to become effective shall have been obtained or received on terms that are satisfactory to Chemesis;
(f) no action will have been instituted and be continuing on the Effective Date for an injunction to restrain, a declaratory judgment in respect of, or damages on account of or relating to the Arrangement and there shall will not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding cease trading or similar order with respect to any securities of any of the parties will have been issued and remain outstanding;
(other than an appeal made in connection g) none of the consents, orders, rulings, approvals or assurances required for the implementation of the Arrangement will contain terms or conditions or require undertakings or security deemed unsatisfactory or unacceptable by Chemesis;
(h) no law, regulation or policy will have been proposed, enacted, promulgated or applied that interferes or is inconsistent with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;Arrangement; and
(ei) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to timesection 6.2 hereof, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and unless such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which condition is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderhereto.
Appears in 1 contract
Sources: Arrangement Agreement
Mutual Conditions Precedent. The respective obligations of the Parties each Party to complete the transactions contemplated by this Agreement shall be subject to the satisfaction, on at or before the Effective DateTime, of the following conditions precedent, and each of which may only Party shall cause such conditions to be waived by the mutual consent of First Majestic and Silvermexfulfilled insofar as they relate to matters within its control:
(a) the Arrangement Interim Order shall have been approved at the Silvermex Meeting by not less than two-thirds obtained in form and substance satisfactory to each of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2Parties, acting reasonably;
(b) the Arrangement Resolution shall have been approved by the vote of Securityholders at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or requirements of the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms substance satisfactory to each of Silvermex and First Majesticthe Parties, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonablyany of the Parties, on appeal or otherwise;
(d) the number of Nevada Pacific Shares held by Shareholders that have validly exercised their Dissent Rights in respect of the Arrangement shall not exceed 5% of the number of Nevada Pacific Shares outstanding on May 18, 2007;
(e) there shall not exist any prohibition under applicable Law against the completion of the Arrangement; and
(f) there shall not be in force any order or decree restraining or enjoining or materially modifying or imposing material conditions on the consummation of the transactions transaction contemplated by under this Agreement or under the Plan of Arrangement, and there shall be no proceeding (other than an appeal made in connection with the Arrangement)proceeding, whether of a judicial or administrative nature or otherwiseotherwise brought by a Governmental Entity, in progress or threatened that relates to or results from the transactions contemplated by under this Agreement that would, if successful, result in an order or ruling that would preclude completion of of, or materially modify or impose material conditions on, the transactions transaction contemplated by under this Agreement or under the Plan of Arrangement in accordance with the terms and conditions hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;
(e) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderthereof.
Appears in 1 contract
Sources: Arrangement Agreement (Us Gold Canadian Acquisition Corp)
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic Coeur and SilvermexOrko:
(a) the Arrangement shall have been approved at the Silvermex Orko Meeting by not less than two-thirds of the votes cast by the Silvermex Orko Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Orko Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex Orko and First MajesticCoeur, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;
(e) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex Orko shall have received any required approval of the TSX TSX-V to the transactions contemplated herein;
(g) the First Majestic Coeur Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Coeur Shares and Replacement the Coeur Warrants (but not the Coeur Shares underlying any Coeur Warrants) will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Coeur Shares, the Coeur Warrants and the Coeur Shares underlying securities the Coeur Warrants will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex Orko securities are resident; and such First Majestic Coeur securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates of Coeur or except as disclosed in the Silvermex Orko Circular or except by reason of the existence of any controlling interest in First Majestic Coeur pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic Coeur and Silvermex Orko acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic Coeur or Silvermex Orko shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic Coeur and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderOrko.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties to complete consummate the transactions contemplated by this Agreement shall be herein are subject to the satisfaction, on or before the Effective Closing Date, of the following conditions precedent, each any of which may only be waived by the mutual consent of First Majestic and Silvermexsuch Parties without prejudice to their right to rely on any other of such conditions:
(a) the Arrangement TSX Approval shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;
(eb) this Agreement there shall not have been terminated pursuant to Article 6;no action taken under Applicable Laws, nor any statute, rule, regulation or order which is enacted, enforced, promulgated or issued by any Governmental Entity, that:
(fi) Silvermex shall have received any required approval makes illegal or otherwise directly or indirectly restrains, enjoins or prohibits the transactions contemplated herein; or
(ii) results in a judgement preventing, or assessment of the TSX to material damages directly or indirectly relating to, the transactions contemplated herein;
(gc) properly executed Unit Subscription Agreements, together with certified cheques or bank drafts or other forms of payment shall have been delivered by the First Majestic Shares issuable applicable Subscribers as contemplated in Section 2.1 to the satisfaction of Corridor and the Initial Investor Group, each acting reasonably;
(id) a minimum of 21,739,130 Subscription Receipts will have been purchased pursuant to the Arrangement Subscription Receipt Private Placement and (ii) upon exercise of the Replacement Warrants from time to time, all Escrow Release Conditions shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada satisfied or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonablywaived; and
(je) all other consents, waivers, permits, orders necessary consents to the Unit Private Placement and approvals Reconstitution of any Governmental Entity, and the expiry of any waiting periods, in connection with, or Management required to permit the consummation be obtained as of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex Closing Date shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majesticobtained. The obligations foregoing conditions are for the mutual benefit of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfactionInitial Investor Group, on or before the Effective Dateone hand, of each and Corridor, on the other hand, and may be asserted by either of the following conditions precedent (each Initial Investor Group or Corridor regardless of which is for the exclusive benefit of First Majestic circumstances and may be waived by First Majestic):
the Initial Investor Group or Corridor (awith respect to itself) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreementtheir sole discretion, in whole or in part, at any time and from time to time without prejudice to any other rights which event such representations and warranties shall be true and correct in all material respects as of such earlier specified dateParty may have, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented subject to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderSection 7.1.
Appears in 1 contract
Sources: Investment Agreement
Mutual Conditions Precedent. The respective obligations of the Parties Fund, the Company, 6814832 and ParentCo to complete the transactions contemplated by this Agreement shall be subject to the fulfillment or satisfaction, on or before the Effective Date, of each of the following conditions precedentconditions, each any of which may only be waived collectively by the mutual consent of First Majestic and Silvermexthem without prejudice to their right to rely on any other condition:
(a) the Arrangement Interim Order shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained granted in form and terms substance satisfactory to each of Silvermex the Fund, the Company, 6814832 and First MajesticParentCo, acting reasonably, not later than August 28, 2008 or such later date as the parties hereto may agree and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, such parties on appeal or otherwise;
(b) the Conversion Resolution shall have been approved by the requisite number of votes cast by the Voting Unitholders at the Meeting in accordance with the provisions of the Interim Order and any applicable regulatory requirements;
(c) the Final Order shall have been granted in form and substance satisfactory to the Fund, the Company, 6814832 and ParentCo acting reasonably, not later than October 1, 2008 or such later date as the parties hereto may agree;
(d) there the Articles of Arrangement and all necessary related documents, in form and substance satisfactory to the Fund, the Company, 6814832 and ParentCo acting reasonably, shall not be have been accepted for filing by the Director together with the Final Order in force any order or decree restraining or enjoining the consummation accordance with subsection 183 of the transactions contemplated OBCA;
(e) no material action or proceeding shall be pending or threatened by this Agreement any person, company, firm, governmental authority, regulatory body or agency and there shall be no proceeding action taken under any existing applicable law or regulation, nor any statute, rule, regulation or order which is enacted, enforced, promulgated or issued by any court, department, commission, board, regulatory body, government or governmental authority or similar agency, domestic or foreign, that:
(i) makes illegal or otherwise directly or indirectly restrains, enjoins or prohibits the Arrangement or any other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;herein; or
(eii) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval results in a judgment or assessment of the TSX material damages directly or indirectly relating to the transactions contemplated herein;
(f) all necessary material third party and regulatory consent and approvals with respect to the transactions contemplated under the Arrangement shall have been completed or obtained including, without limitation, the necessary consents and approvals from the Fund’s principal lenders;
(g) the First Majestic TSX shall have conditionally approved the listing or the substitutional listing of the ParentCo Shares issuable (i) to be issued pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSEArrangement, subject only to official notice the filing of issuance;required documents which cannot be filed prior to the Effective Date; and
(h) the issuance Second Amended and Restated Declaration of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement Trust shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except amended to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of facilitate the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunder.
Appears in 1 contract
Sources: Arrangement Agreement (IESI-BFC LTD)
Mutual Conditions Precedent. The respective obligations of each of the Parties parties to this Agreement to complete the transactions contemplated by this Agreement shall be Restructuring are subject to the satisfaction, on fulfilment or before mutual waiver by each of the Effective Date, parties hereto of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermexconditions:
(a) the Arrangement Restructuring and this Agreement shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2board of directors of Surge, Subco and Big Sky;
(b) the Arrangement sale of the Surge BC Shares from Surge to the Purchasers shall have been approved at by the Silvermex Meeting shareholders of Surge in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or laws of the Interim OrderState of Nevada and the rules and regulations of the SEC;
(c) each party shall have performed each covenant or obligation to be performed by it hereunder in favour of the Interim Order other parties, except that the parties hereto acknowledge that the covenant to prepare, file and deliver the Information Statement in accordance with Section 2.1(b) and (c) and the Final Order shall each have been obtained in form and terms satisfactory to each corresponding transfer of Silvermex and First Majestic, acting reasonably, and the Surge BC Shares shall not have been set aside or modified be considered a condition precedent to Closing and will be effected by Surge after the Closing Date in a manner unacceptable to either Party, acting reasonably, on appeal or otherwiseaccordance with Rule 14c-2 of the Exchange Act;
(d) there the representations and warranties of each party set out in this Agreement shall not be in force any order or decree restraining or enjoining the consummation true and correct on and as of the transactions contemplated by date of this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedAgreement;
(e) no order or decree of any domestic or foreign court, tribunal, governmental agency or other regulatory authority or administrative agency, board or commission, and no law, regulation, policy, directive or order shall have been enacted, promulgated, made, issued or applied to cease trade, enjoin, prohibit or impose material limitations on, the Restructuring or the transactions contemplated thereby;
(f) there shall not exist any prohibition at law against the completion of the Restructuring; and
(g) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderprovisions hereof.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement Transaction shall be subject to the satisfaction, on or before the Effective DateClosing Time, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic Acquisitionco and Silvermexthe Company:
(a) the Arrangement Transaction Resolution shall have been approved by (i) 66 2/3% of the votes cast on the Transaction Resolution by the Company Shareholders present in person or by proxy at the Company Meeting, and (ii) a simple majority of the votes cast on the Transaction Resolution by the Company Shareholders present in person or by proxy at the Company Meeting, excluding Company Shares held by Senior Management;
(b) the Transaction shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Company Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained on terms consistent with this Agreement and in a form and terms satisfactory to each of Silvermex and First Majesticthe Parties, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Partysuch Parties, acting reasonably, on appeal or otherwise;
(d) the Articles of Arrangement shall be in content consistent with this Agreement and in form satisfactory to the Parties acting reasonably;
(e) there shall not be in force any Law, final and non-appealable injunction, order or decree prohibiting, restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding Transaction;
(other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with f) the Regulatory Approvals which shall have been obtained;obtained or satisfied on terms and conditions satisfactory to the Parties acting reasonably; and
(eg) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunder.
Appears in 1 contract
Sources: Combination Agreement (Masonite International Corp)
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement shall be Arrangement are subject to the satisfaction, or mutual waiver by Parent and the Company in writing, on or before the Effective Closing Date, of each of the following conditions precedentconditions, each of which may only be waived by are for the mutual consent benefit of First Majestic the Parties and Silvermexwhich may be waived, in whole or in part, by Parent and the Company at any time:
(a) the Arrangement Company Shareholder Approval shall have been approved obtained at the Silvermex Company Meeting by not less than two-thirds of in accordance with the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2Interim Order and applicable Laws;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) each of the Interim Order and Final Order shall have been obtained on terms consistent with this Agreement and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Partythe Company or Parent, each acting reasonably, on appeal or otherwise;
(c) the Form S-4 shall have been declared effective and no stop order suspending the effectiveness of the Form S-4 shall be in effect and no similar action in respect of the Information Statement shall have been initiated or threatened by the SEC and not concluded or withdrawn;
(d) there (i) the Holdings Common Shares shall not be in force any order or decree restraining or enjoining have been (A) approved for listing on the consummation NYSE, subject only to official notice of issuance, and (B) conditionally approved for listing on the TSX, subject only to the satisfaction of customary listing conditions of the transactions contemplated by this Agreement TSX, and there (ii) the Exchangeable Units shall be no proceeding (other than an appeal made in connection with have been conditionally approved for listing on the Arrangement)TSX, subject only to the satisfaction of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion customary listing conditions of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedTSX;
(e) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex Required Regulatory Approvals shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic concluded and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, effect and each of any waiting or suspensory periods related to the parties thereto (other than First Majestic) Required Regulatory Approvals shall behave expired or been terminated, in all material respectseach case, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before without the Effective Date, written resignations effective as imposition of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunder.Restraint;
Appears in 1 contract
Sources: Arrangement Agreement and Plan of Merger (Burger King Worldwide, Inc.)
Mutual Conditions Precedent. The respective obligations of the Parties Celestica and Primetech to complete the transactions contemplated by this Agreement Arrangement and to file articles of arrangement to give effect to the Arrangement shall be subject to the satisfaction, on or before the Effective Date, satisfaction of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermexconditions:
(a) the Arrangement Plan of Arrangement, either with or without amendment, shall have been approved at the Silvermex Meeting by not less than two-thirds of in accordance with the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2Interim Order;
(b) the Arrangement shall have been approved by Shareholders and Optionholders at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order2.5;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms substance satisfactory to each of Silvermex Celestica and First MajesticPrimetech, acting reasonably, reasonably and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, such Parties on appeal or otherwise;
(d) there shall not be in force exist any order or decree restraining or enjoining prohibition at Law against the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated Arrangement or the acquisition by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;Celestica of Primetech Common Shares pursuant thereto; and
(e) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex the TSE shall have received any required provided conditional listing approval of the TSX Celestica Subordinate Voting Shares to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) be issued pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or to be issued pursuant to the exercise of Exchanged Options, subject to Celestica filing customary documents with the TSE, and the NYSE shall have approved of the listing of such Celestica Subordinate Voting Shares, subject to notice of issuance. The foregoing conditions are for the mutual benefit of Celestica on the one hand and Primetech on the other hand and may be waived, in whole or in part, by either of them at any time. If any of the transactions contemplated by this Agreement said conditions precedent shall not be complied with or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, waived as aforesaid on or before August 31, 2001 or, if earlier, the Effective Datedate required for the performance thereof, then either Celestica or Primetech may terminate this Agreement by written resignations effective as of notice to the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on other Parties in circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of such terminating Party's breach of this Agreement; provided, however, that if any such condition that has not been waived by the above conditions precedent terminating Party cannot be complied with on or before August 31, 2001 as a basis result of an injunction or order made by a court or regulatory authority of competent jurisdiction (provided that such injunction or order is being contested or appealed) the deadline for non-compliance by it complying with its obligations under this Agreement if the such condition precedent would have been satisfied but shall be extended for a material default by First Majestic period ending on the earlier of September 30, 2001 and such date as is the earliest date on which such condition may be complied with following the date on which such injunction or order ceases to be in complying with its obligations hereundereffect.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and SilvermexOrko:
(a) the Arrangement shall have been approved at the Silvermex Orko Meeting by not less than two-thirds of the votes cast by the Silvermex Orko Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Orko Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex Orko and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;
(e) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex Orko shall have received any required approval of the TSX TSX-V to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex Orko securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Orko Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex Orko acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex Orko shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or SilvermexOrko. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex Orko under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex Orko in all material respectsrespects and First Majestic shall have received a certificate of Orko addressed to First Majestic and dated the Effective Date, signed on behalf of Orko by two directors or senior executive officers of Orko, confirming the same as at the Effective Date;
(b) the representations and warranties of Silvermex Orko contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) ), except where any failure or failures of such representations and warranties to be so true and correct would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Orko, and First Majestic shall have received a certificate of Silvermex Orko addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex Orko by two directors or senior executive officers of SilvermexOrko, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to SilvermexOrko;
(d) the Silvermex Orko Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by SilvermexOrko, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Orko Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either any of the Parties any damages that are material in relation to SilvermexOrko;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex Orko or any Silvermex Orko Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex Orko or any Silvermex Orko Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Orko Shares, including the right to vote the Silvermex Orko Shares on all matters properly presented to the shareholders of SilvermexOrko;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex Orko or any Silvermex Orko Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex Orko or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, required or necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;; and
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex Orko shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex Orko and the Silvermex Orko Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunder.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties to complete consummate the transactions contemplated by this Agreement shall be hereby, and in particular the Arrangement, are subject to the satisfaction, on or before the Effective DateDate or such other time specified, of the following conditions precedentconditions, each any of which may only be waived by the mutual written consent of First Majestic and Silvermexsuch Parties without prejudice to their right to rely on any other of such conditions:
(a) the Arrangement Interim Order shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained granted in form and terms substance satisfactory to each of Silvermex and First Majesticthe Parties, acting reasonably, and such order shall not have been set aside or modified in a manner unacceptable to either Partythe Parties, acting reasonably, on appeal or otherwise;
(b) the Arrangement Resolution shall have been passed by the VEGN Shareholders at the VEGN Meeting in accordance with the Arrangement Provisions, the constating documents of Plant&Co, the Interim Order and the requirements of any applicable regulatory authorities;
(c) the Arrangement and this Agreement, with or without amendment, shall have been approved by the Spinco Shareholders to the extent required by, and in accordance with, the Arrangement Provisions and the constating documents of Spinco;
(d) the Final Order shall have been granted in form and substance satisfactory to the Parties, acting reasonably;
(e) all other consents, orders, regulations and approvals, including regulatory and judicial approvals and orders required or necessary or desirable for the completion of the transactions provided for in this Agreement and the Plan of Arrangement shall have been obtained or received from the persons, authorities or bodies having jurisdiction in the circumstances, each in form acceptable to the Parties;
(f) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;; and
(eg) this Agreement shall not have been terminated pursuant to under Article 6;
(f) Silvermex shall have received any required approval of 7. Except for the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to timeconditions set forth in this §5.1 which, shall have been authorized for listing on the TSX and the NYSEby their nature, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will may not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consentswaived, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated other conditions in this §5.1 may be waived, either in whole or in part, by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of Parties, as the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall case may be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with at its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderdiscretion.
Appears in 1 contract
Sources: Arrangement Agreement
Mutual Conditions Precedent. The respective obligations of the Parties each Party to complete the transactions contemplated by this Agreement shall be subject to the satisfaction, on or if permissible, waiver, of the following conditions precedent at or before the Effective Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermex:
(a) the Arrangement shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms substance satisfactory to each of Silvermex and First Majesticthe Parties, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Partysuch Parties, acting reasonably, on appeal or otherwise;
(b) the Arrangement Resolution shall have been approved by Shareholders at the Meeting in accordance with the requirements of the Interim Order;
(c) the Final Order shall have been obtained in form and on terms satisfactory to each of Parent and the Company, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to such parties, acting reasonably, on appeal or otherwise;
(d) the Arrangement Filings shall be in form and substance satisfactory to the Parties hereto, acting reasonably; and
(e) there shall not be in force any Laws, ruling, order or decree restraining decree, and there shall not have been any action taken under any Laws or enjoining by any Governmental Entity or other regulatory authority, that makes it illegal or otherwise directly or indirectly restrains, enjoins or prohibits the consummation of the transactions contemplated by this Agreement Arrangement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement hereby in accordance with the terms hereof or would otherwise that results or could reasonably be inconsistent with the Regulatory Approvals which have been obtained;
(e) this Agreement shall not have been terminated pursuant expected to Article 6;
(f) Silvermex shall have received any required approval result in a judgment, order, decree or assessment of the TSX damages, directly or indirectly, relating to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in hereby which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have has a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First MajesticEffect. The obligations of First Majestic to complete foregoing conditions are for the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each mutual benefit of the following conditions precedent (each of which is for the exclusive benefit of First Majestic Parties hereto and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entitya Party hereto, in each case that has a reasonable likelihood of success:
(i) seeking to restrain whole or prohibit the consummation of the Plan of Arrangement or in part, by such Party hereto in writing at any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereundertime.
Appears in 1 contract
Sources: Arrangement Agreement (Nevoro Inc.)
Mutual Conditions Precedent. The respective obligations of the Parties hereto to complete each step of the transactions Business Combination contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived only by the mutual consent of First Majestic and Silvermexthe Parties:
(a) the Arrangement shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement Business Combination or the Listing;
(b) Issuer shall have completed the Conversion and there the Issuer Amendment;
(c) Issuer shall be no proceeding (other than an appeal made in connection have filed the Notice of Alteration with respect to the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement Issuer Amendment in accordance with the terms hereof or would otherwise be inconsistent with BCBCA;
(d) Ultron shall have completed the Regulatory Approvals which have been obtainedUltron Private Placement;
(e) Ultron shall have completed the Ultron Acquisition;
(f) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein7;
(g) except as contemplated herein, each Party shall not have entered into any transaction or contract which would have a material effect on the First Majestic Shares issuable (i) pursuant to financial and operational condition, or the Arrangement assets of each Party, excluding those transactions or contracts undertaken in the ordinary course of business, without first discussing and (ii) upon exercise obtaining the approval of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuanceother Party;
(h) the issuance requisite approval of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements shareholders of Issuer of the U.S. Securities Act Amalgamation and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances Issuer Amendment shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunderobtained; and
(i) Silvermex the requisite approval of the shareholder of Ultron of the Amalgamation shall have provided to First Majestic, been obtained. If any of the above conditions shall not have been complied with or waived by the Parties on or before the Effective DateCompletion Deadline or, written resignations effective as of if earlier, the Effective Timedate required for the performance thereof, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic then a Party may not rely on terminate this Agreement in circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of a breach of this Agreement by the Party terminating the Agreement. In the event that the failure to satisfy any one or more of the above conditions precedent as results from a basis for non-compliance material default by it with a Party of its obligations under this Agreement and if the condition such condition(s) precedent would have been satisfied but for such default, such defaulting Party shall not rely on such failure (to satisfy one or more of the above conditions) as a material default by First Majestic in complying basis for its own non-compliance with its obligations hereunderunder this Agreement.
Appears in 1 contract
Sources: Business Combination Agreement
Mutual Conditions Precedent. The respective obligations of the Parties parties hereto to complete the transactions contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic UPM and Silvermex:
(a) Repap: the Arrangement Amalgamation shall have been approved at the Silvermex Repap Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or Repap Shareholders voting together and by proxy thereat in not less than two-thirds of the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed votes cast by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each holders of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) Repap Common Shares; there shall not be in force any final and non-appealable injunction, order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement)proceeding, of a judicial or administrative nature or otherwise, brought by a Governmental Entity in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;
(e) hereof; this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of ; other than the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to timeRegulatory Approvals, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit permit, the consummation of the Arrangement and the other transactions contemplated hereinAmalgamation, the failure of which to obtain or the non-expiry of which would constitute a criminal offenseviolation of applicable Laws, or would have a Material Adverse Effect on First Majestic UPM or Silvermex Repap, as the case may be, shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic UPM and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) Repap; there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
: (i) seeking to prohibit or restrict the acquisition by UPM or any of its subsidiaries of any Repap Common Shares or Repap Options, seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement Amalgamation or seeking to obtain from either of the Parties Repap or UPM any damages that are material directly or indirectly in relation to Silvermex;
connection with the Amalgamation, (ii) seeking to prohibit or materially limit the ownership or operation by First Majestic UPM or any of the First Majestic Material Subsidiaries its subsidiaries of any material portion of the business or assets of Silvermex Repap or any Silvermex Subsidiary of its subsidiaries or to compel First Majestic UPM or any of the First Majestic Material Subsidiaries its subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex Repap or any Silvermex Subsidiary;
of its subsidiaries, (iii) seeking to impose limitations on the ability of First Majestic UPM or any of its subsidiaries to acquire or hold, or exercise full rights of ownership of of, any Silvermex Repap Common Shares, including the right to vote the Silvermex Repap Common Shares purchased by them on all matters properly presented to the shareholders of Silvermex;
Repap, (iv) seeking to prohibit First Majestic UPM or any of the First Majestic Material Subsidiaries its subsidiaries from effectively controlling in any material respect the business or operations of Silvermex Repap or any Silvermex Subsidiary; or
of its subsidiaries or (v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex Repap or First Majestic;
(g) all consents, approvals, authorizations UPM; and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) Regulatory Approvals shall have been obtained or received satisfied on terms which are acceptable and conditions satisfactory to First MajesticUPM, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunder.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties parties to complete the transactions contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermex:Normabec (on behalf of itself and Newco):
(a) the Arrangement shall have been approved at the Silvermex Normabec Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders Normabec Shareholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Normabec Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act CBCA or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex Normabec and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Partysuch parties, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Applicable Regulatory Approvals which have been obtained;
(e) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex Normabec shall have received any required approval the consent of the TSX TSXV to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement Arrangement, (ii) to Gestion Somiray Inc. under Section 5.2(k); and (iiiii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSETSX, subject to official notice of issuance;
(h) the issuance various issuances and exchanges of the Normabec Shares, Normabec Warrants, Newco Shares, Newco Warrants, First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares registration and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities securities Laws in each of the Provinces of Canada in which holders of Silvermex Normabec securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws securities laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws securities laws of any applicable jurisdiction;
(i) all Antitrust Clearances the board of directors of Normabec shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; andreceived the Fairness Opinion;
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit permit, the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex Normabec, as the case may be, shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic Normabec and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either any of the Parties parties hereto any damages that are material in relation to SilvermexNormabec;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex Normabec or any Silvermex Normabec Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex Normabec or any Silvermex Normabec Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of of, any Silvermex Normabec Shares, including the right to vote the Silvermex Normabec Shares on all matters properly presented to the shareholders of SilvermexNormabec;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex Normabec or any Silvermex Normabec Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex Normabec or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(ik) Silvermex First Majestic and Newco shall have provided entered into a subscription agreement on mutually satisfactory terms (acting reasonably) pursuant to which First Majestic, on or before the Effective Date, written resignations effective as Majestic shall have agreed to purchase securities representing approximately (and no less than) 10% of the Effective Timeissued and outstanding shares of Newco for an aggregate purchase price of $300,000, from all directors and officers such purchase to be effective immediately prior to listing of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely Newco on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderTSXV.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of Baytex, Crew, AcquisitionCo, ExchangeCo, Baytex Resources, Baytex Exploration and the Parties Trust to complete the transactions contemplated by this Agreement shall be subject to the fulfilment or satisfaction, on or before the Effective Date, of each of the following conditions precedentconditions, each any of which may only be waived collectively by the mutual consent of First Majestic and Silvermexthem without prejudice to their right to rely on any other condition:
(a) the Arrangement Interim Order shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained granted in form and terms substance satisfactory to each of Silvermex Baytex, Crew, AcquisitionCo, ExchangeCo, Baytex Resources, Baytex Exploration and First Majesticthe Trust, acting reasonably, not later than July 30, 2003 or such later date as the parties hereto may agree and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, such parties on appeal or otherwise;
(b) the Baytex Arrangement Resolution shall have been approved by the requisite number of votes cast by the Common Shareholders and the Optionholders at the Meeting in accordance with the provisions of the Interim Order and any applicable regulatory requirements;
(c) the Final Order shall have been granted in form and substance satisfactory to Baytex, Crew, AcquisitionCo, ExchangeCo, Baytex Resources, Baytex Exploration and the Trust acting reasonably not later than October 31, 2003 or such later date as the parties hereto may agree;
(d) the Articles of Arrangement and all necessary related documents, in form and substance satisfactory to Baytex, Crew, AcquisitionCo, ExchangeCo, Baytex Resources, Baytex Exploration and the Trust, acting reasonably, shall have been accepted for filing by the Registrar together with the Final Order in accordance with subsection 193(9) of the ABCA;
(e) there shall not be in force any order or decree restraining of a court of competent jurisdiction or of any federal, provincial, municipal or other governmental department, commission, board, agency or regulatory body restraining, interfering with or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;
(e) this Agreement shall not have been terminated pursuant to Article 6Agreement;
(f) Silvermex shall have received any required approval of the TSX all necessary third party and regulatory and similar reviews, consents and approvals with respect to the transactions contemplated hereinhereby shall have been completed or obtained including, without limitation, consents and approvals from Baytex’s principal lenders;
(g) there shall not, as of the First Majestic Effective Date, be holders of Common Shares issuable or holders of Options that hold, in aggregate, in excess of 5% of all Common Shares and Options, that have validly exercised their rights of dissent under the ABCA and the Interim Order; and
(ih) the approval of the TSX of the listing of the Trust Units and Crew Shares to be issued pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, Initial Private Placement shall have been authorized for listing on the TSX and the NYSEbe obtained, subject only to official notice the filing of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in required documents which holders of Silvermex securities are resident; and such First Majestic securities will cannot be subject filed prior to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunder.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement shall be hereby are subject to the satisfactionfulfillment, on or before the Effective DateTime or such other time specified, of each of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermex:
(a) the Arrangement shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and on terms satisfactory to each of Silvermex and First Majesticthe Parties, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Partythe Parties, acting reasonably, on appeal or otherwise;
(b) the Arrangement Resolution shall have been approved at the DirectCash Meeting by not less than the Shareholders’ Vote;
(c) the Final Order shall have been obtained in form and on terms satisfactory to each of the Parties, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to the Parties, acting reasonably, on appeal or otherwise;
(d) there the Certificate of Arrangement shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedissued by the Registrar and the Effective Date shall have occurred not later than the Outside Date;
(e) no Governmental Entity having jurisdiction in the circumstances shall have enacted, issued, promulgated, applied for (or advised any of the Parties in writing that it has determined to make such application), enforced or entered any Law (whether temporary, preliminary or permanent) that restrains, enjoins or otherwise prohibits consummation of, or dissolves the Arrangement or the transactions contemplated hereby; and
(f) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval in accordance with its terms. The foregoing conditions precedent are for the mutual benefit of the TSX to Parties and may only be waived, in whole or in part, by the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise mutual consent of the Replacement Warrants from Parties in writing at any time in their sole discretion without prejudice to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance any other rights they may have. If any of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will foregoing conditions shall not be subject to hold periods under the Securities Laws of Canada satisfied or the United States except as may be imposed waived in writing by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, both Parties on or before the Effective Date, of each of the following conditions precedent (each of which is date required for the exclusive benefit of First Majestic their performance and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of provided such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under did not arise from the acts or omissions of the Party wishing to terminate, then a Party may terminate this Agreement if by written notice to the condition precedent would other Party in addition to the other rights or remedies it may have been satisfied but for a material default by First Majestic at law or in complying with its obligations hereunderequity against such other Party.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement shall be Arrangement are subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived mutual waiver by the mutual consent of First Majestic and Silvermex:
(a) the Arrangement shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;
(e) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfactionParties, on or before the Effective Date, of each of the following conditions precedent (conditions, each of which is are for the exclusive mutual benefit of First Majestic the Parties and which may be waived waived, in whole or in part, by First Majestic):the mutual consent of the Purchaser and the Company at any time:
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall Arrangement Resolution will have been duly performed approved by the Company Voting Shareholders at the Company Meeting in accordance with the Interim Order and observed by Silvermex in all material respectsapplicable Laws;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as each of the date of Interim Order and Final Order will have been obtained on terms consistent with this Agreement and as of will not have been set aside or modified in any manner unacceptable to either the Effective Date as if made Company or the Purchaser, each acting reasonably, on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, appeal or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Dateotherwise;
(c) between the date hereof and Purchaser shall have made the Effective Daterequired filings with the CSE to list the Consideration Shares thereon, there shall not have occurred, in other than customary post-closing filings required to be submitted within the judgment applicable timeframe pursuant the rules of First Majestic, acting reasonably, a Material Adverse Change to Silvermexthe CSE;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall U.S. Regulatory Approvals will have been taken by Silvermex, to permit the consummation of the Arrangementobtained and be in full force and effect and not modified or rescinded;
(e) holders of more than 5% of no Law will have been enacted, issued, promulgated, enforced, made, entered, issued or applied and no Proceeding will otherwise have been taken under any Laws or by any Governmental Authority (whether temporary, preliminary or permanent) that makes the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect Arrangement illegal or otherwise directly or indirectly cease trades, enjoins, restrains or otherwise prohibits completion of the Arrangement;
(f) there the Consideration Shares to be issued and exchanged pursuant to the Arrangement shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit exempt from the consummation registration requirements of the Plan of Arrangement or any U.S. Securities Act pursuant to Section 3(a)(10) thereof and pursuant to exemptions from applicable state securities Laws, provided, however, that the Company shall be not entitled to the benefit of the transactions contemplated by conditions in this Agreement or seeking subsection 7.1(f), and shall be deemed to obtain from either have waived such condition in the event that the Company fails to advise the Court prior to the hearing in respect of the Parties any damages Final Order that are material in relation the Purchaser intends to Silvermex;
(iirely on the exemption from registration afforded by Section 3(a)(10) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion U.S. Securities Act based on the Court’s approval of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of Arrangement and comply with the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of requirements set forth in Section 2.14 and the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex SubsidiaryFinal Order shall reflect such reliance; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;and
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion distribution of the Purchaser Shares pursuant to the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under shall be exempt from the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) prospectus requirements of applicable Securities Laws in Canada either by virtue of exemptive relief from the securities regulatory authorities of each of the Lock-up Agreements provinces of Canada or by virtue of exemptions under applicable Securities Laws and shall not be and remain subject to resale restrictions in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations Canada under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderapplicable Securities Laws.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement Transaction shall be subject to the satisfaction, on or before the Effective Closing Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermexthe Parties:
(a) the Arrangement shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement)proceeding, of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals any required regulatory approvals which have been obtained;
(eb) this Agreement shall not have been terminated pursuant to Article 6Section 8.1;
(fc) Silvermex the Vendor shall have received any all required approval approvals of the TSX TSXV and the Vendor Shareholder Approval to the transactions contemplated herein;
(gd) the First Majestic Purchaser shall have received all required approvals of the TSX and the NYSE to the transactions contemplated herein;
(e) the Purchaser Shares issuable (i) to be issued by the Purchaser pursuant to the Arrangement and (iiSection 2.2(b) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(jf) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex Transaction herein shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderobtained.
Appears in 1 contract
Sources: Asset Purchase Agreement
Mutual Conditions Precedent. The respective obligations of the Parties parties hereto to complete consummate the transactions contemplated by this Agreement shall be hereby, and in particular the Amalgamation, are subject to the satisfaction, on or before the Effective DateDate or such other time specified, of the following conditions precedentconditions, each any of which may only be waived by the mutual consent of First Majestic and Silvermexsuch parties without prejudice to their right to rely on any other of such conditions:
(a) PubCo and Inner Spirit shall each be satisfied, in their discretion, with the Arrangement shall have been approved at the Silvermex Meeting by not less than two-thirds drafts of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2Prospectus and Listing Statement;
(b) all required shareholder approvals, if any, shall be obtained to complete the Arrangement shall have been approved at the Silvermex Meeting Transaction contemplated hereby, in accordance with any conditions each case, in addition form and substance reasonably satisfactory to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Ordereach of Inner Spirit and PubCo;
(c) the Interim Order and the Final Order Amalgamation Resolution shall each have been obtained passed by the Inner Spirit Shareholders on or prior to the Effective Date, in form and terms substance satisfactory to each of Silvermex PubCo and First MajesticInner Spirit, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwiseduly approving the Amalgamation;
(d) Inner Spirit and PubCo shall be satisfied that, from the date of this letter until the date of closing of the proposed Transaction (the "Closing Date"), there shall not have been no material change or change in a material fact or new material fact or an undisclosed material fact or material change all in respect of either company and their assets which might be in force any order expected to have a material adverse effect on the condition (financial or decree restraining otherwise), capital, property, assets, operations, business, affairs, profitability or enjoining the consummation of the transactions contemplated by this Agreement prospects; and there both parties shall be no proceeding satisfied that either shall not have taken any act, entered into or become a party to or subject to any agreement or transaction or incurred or become liable for any obligation except in the ordinary course of business (other than in this respect, a material adverse change shall be deemed to have occurred if the same has an appeal made impact of $50,000 or greater, in connection with the Arrangement)aggregate, on the assets or condition (financial or otherwise) of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedparty);
(e) this Agreement the Articles of Amalgamation to be filed with the Registrar shall not have been terminated pursuant be in form and substance satisfactory to Article 6each of PubCo and Inner Spirit, acting reasonably;
(f) Silvermex the Effective Date shall have received any required approval of the TSX be on or prior to the transactions contemplated herein;Outside Date; and
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement all required regulatory, governmental and (ii) upon exercise third party approvals, waivers and consents in respect of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance completion of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances Amalgamation shall have been obtained on terms and conditions satisfactory to PubCo and Inner Spirit, each acting reasonably, including, without limitation, conditional approval for listing of PubCo Shares issuable pursuant to the Amalgamation, and all applicable statutory and regulatory waiting periods shall have expired or have been terminated and no unresolved material objection or opposition shall have been filed, initiated or made during any applicable statutory regulatory period. For greater certainty, all PubCo Shares issued pursuant to the Amalgamation shall be free trading (except as described in Section 2.10 hereof);
(h) as at the Closing Date, PubCo shall have $nil indebtedness, excluding any debt incurred in connection with the Transaction;
(i) each of First Majestic PubCo and Silvermex acting reasonably; andInner Spirit shall provide severance obligation to its officers, payable on the Closing Date, of not greater than $nil, in the aggregate;
(j) all Inner Spirit and PubCo shall be satisfied that there are no legal proceedings or regulatory actions or proceedings in existence, threatened or contemplated against either party which may, if adversely determined, have a material adverse effect on either Inner Spirit or PubCo. The foregoing conditions are for the mutual benefit of Inner Spirit on the one hand and PubCo on the other consents, waivers, permits, orders hand and approvals of any Governmental Entity, may be asserted by Inner Spirit and the expiry of any waiting periods, in connection with, or required to permit the consummation by PubCo regardless of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic circumstances and may be waived by First Majestic):
(a) all covenants Inner Spirit and agreements PubCo in their sole discretion, in whole or in part, at any time and from time to time without prejudice to any other rights which Inner Spirit or PubCo may have. If any of Silvermex under this Agreement to such conditions shall not be performed complied with or observed waived as aforesaid on or before the Effective Outside Date shall have been duly performed or, if earlier, the date required for the performance thereof, then, subject to section 6.4 hereof, a party hereto may rescind and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in terminate this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except by written notice to the extent such representations and warranties speak as other of a specified date which is earlier than the date of this Agreement, them in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of the above conditions precedent as a basis for non-compliance by it with its obligations under material breach of this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereundersuch rescinding party hereto.
Appears in 1 contract
Sources: Amalgamation Agreement
Mutual Conditions Precedent. The respective obligations of the Parties to complete the Arrangement and the other transactions contemplated by this Agreement and the Arrangement shall be subject to the satisfactionsatisfaction or waiver, on or before the date specified or, if none is specified, on or before the Effective Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermexconditions:
(a) the Arrangement Interim Order shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented granted in person or by proxy thereat in the manner contemplated by Article 2form and substance satisfactory to Biomira;
(b) the Arrangement Resolution shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim OrderBiomira Shareholders;
(c) the Interim Order rights of dissent in relation to the Arrangement shall not have been exercised by holders of more than 1% of the issued and outstanding Biomira Shares;
(d) the Final Order shall each have been obtained in form and terms substance satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwiseBiomira;
(de) there shall not be in force any order or decree restraining or enjoining the consummation of Arrangement from being completed or the other transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedAgreement;
(ef) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein8;
(g) the First Majestic Common Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized conditionally approved for listing on the TSX and the NYSENASDAQ, subject to official notice the filing of issuancerequired documentation;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other approvals, consents, waivers, permits, orders orders, exemptions, agreements and approvals amendments and modifications to agreements, indentures or arrangements of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the third Persons (other transactions contemplated hereinthan Government Authorities), the failure of which to obtain or the non-expiry expiration of which would constitute a criminal offensewould, or would could reasonably be expected, to have a Material Adverse Effect on First Majestic or Silvermex materially impede the completion of the Arrangement, shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent are reasonably satisfactory to Biomira Canco, Biomira Sub-1, Biomira, Biomira US and Biomira Sub-2;
(i) the Obligations board of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, directors of each of the following Parties shall have taken all necessary corporate actions to permit the completion of the Arrangement upon filing of the Articles of Arrangement;
(j) all Regulatory Approvals shall have been obtained; and
(k) there shall not exist any prohibition at Law against the completion of the Arrangement. The above conditions precedent (each of which is are for the exclusive mutual benefit of First Majestic the Parties and may be waived, in whole or in part, by mutual consent of the Parties at any time. If any of the above conditions shall not have been complied with or waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed the Parties on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) or, if earlier, the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, date required for the purposes of determining the accuracy of such representations and warrantiesperformance thereof, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of then a specified date which is earlier than the date of Party may terminate this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunder.
Appears in 1 contract
Sources: Arrangement Agreement (Biomira Inc)
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement and otherwise to give effect to the Plan of Arrangement shall be subject to the satisfaction, on or before the Effective Datemutual waiver in writing, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermexconditions:
(a) the Arrangement Interim Order shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained granted in form and terms substance satisfactory to LVL and each of Silvermex and First Majesticthe LVL Subsidiaries, acting reasonably, and such order shall not have been set aside or modified in a manner unacceptable to either Partyany of the Parties, acting reasonably, on appeal or otherwise;
(b) the Arrangement Resolution shall have been approved by the required number of votes cast by LVL Shareholders at the Meeting in accordance with the Interim Order and, subject to the Interim Order, the constating documents of LVL, applicable Laws and the requirements of any applicable regulatory authorities;
(c) the Arrangement and this Agreement, with or without amendment, shall have been approved by the shareholders of each of the LVL Subsidiaries to the extent required by, and in accordance with applicable Laws and the constating documents of each of the Level Subsidiaries;
(d) the Final Order shall have been obtained in form and substance satisfactory to all Parties, each acting reasonably, not later than July 30, 2023 or such later date as the Parties may agree;
(e) the Arrangement Filings shall be in a form and substance satisfactory to LVL and the LVL Subsidiaries (each acting reasonably);
(f) all material consents, orders, rulings, approvals and assurances, including regulatory and judicial approvals and orders, required for the completion of the transactions provided for in this Agreement and the Plan of Arrangement shall have been obtained or received from the Authorities having jurisdiction in the circumstances, each in a form acceptable to LVL and the LVL Subsidiaries (each acting reasonably);
(g) no action shall have been instituted and be continuing on the Effective Date for an injunction to restrain, a declaratory judgment in respect of, or damages on account of, or relating to, the Plan of Arrangement and there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there no cease trading or similar order with respect to any securities of any of the Parties shall be have been issued and remain outstanding;
(h) none of the consents, orders, rulings, approvals or assurances required for the implementation of the Plan of Arrangement shall contain terms or conditions or require undertakings or security deemed unsatisfactory or unacceptable by any of the Parties, acting reasonably;
(i) no proceeding (other than an appeal made in connection Laws, regulation or policy shall have been proposed, enacted, promulgated or applied which interferes or is inconsistent with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with Plan of Arrangement, including any material change to the terms hereof or income tax Laws of Canada, which would otherwise be inconsistent with have a material adverse effect upon LVL Shareholders if the Regulatory Approvals which have been obtainedPlan of Arrangement is completed;
(ej) no material fact or circumstance, including the fair market value of the shares of the LVL Subsidiaries, shall have changed in a manner which would have a material adverse effect upon LVL or the LVL Shareholders if the Plan of Arrangement is completed;
(k) the issuance of the securities under the Plan of Arrangement shall be exempt from registration under the U.S. Securities Act pursuant to the Section 3(a)(10) Exemption;
(l) this Agreement shall not have been terminated pursuant to under Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(jm) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of no more than 5% of LVL Shareholders, in the issued and outstanding Silvermex Shares aggregate, shall not have exercised the their Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderRights.
Appears in 1 contract
Sources: Arrangement Agreement
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement shall be Agreement, including any Pre-Acquisition Transactions referred to in Section 5.2, are subject to the satisfactionfulfillment, on or before the Effective DateTime, of each of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermexthe Parties:
(a) the Arrangement shall Resolution will have been approved and adopted by the Peak Shareholders at the Silvermex Peak Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting Required Vote in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(cb) the Interim Order and the Final Order shall will each have been obtained in form and on terms satisfactory to each of Silvermex and First Majestic, acting reasonablyconsistent with this Agreement, and shall will not have been set aside or modified in a manner unacceptable to either Partythe Parties, acting reasonably, on appeal or otherwise;
(c) all Regulatory Approvals will have been obtained or concluded, as provided in Schedule C;
(d) there shall not be in force no Governmental Entity will have enacted, issued, promulgated, enforced or entered any order Law (whether temporary, preliminary or decree restraining permanent) that restrains, enjoins or enjoining the otherwise prohibits consummation of the Arrangement or the other transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedAgreement;
(e) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to timeno act, shall have been authorized for listing on the TSX and the NYSEaction, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada suit, demand or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action proceeding shall have been taken by Silvermexor before any Canadian or foreign court, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued tribunal or Governmental Entity or by or before any elected or appointed public official in Canada or elsewhere, and outstanding Silvermex Shares no law, regulation or policy shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending been proposed, enacted, promulgated or threatened any suit, action or proceeding applied by any a Governmental Entity, in each either case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to cease trade, enjoin, prohibit or materially limit impose material limitations or conditions on the ownership purchase by or operation by First Majestic or any of the First Majestic Material Subsidiaries sale to Purchaser of any material portion Peak Common Shares or the right of the business or assets of Silvermex or any Silvermex Subsidiary or Purchaser to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, own or exercise full rights of ownership of any Silvermex Peak Common Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(if) Silvermex shall this Agreement will not have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it been terminated in accordance with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderterms.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties Participating Corporations to complete the transactions contemplated by this Agreement to give effect to the Merger shall be subject to the satisfaction, on or before the Effective Date, satisfaction of the following conditions precedentconditions, each paragraph (i) of which may only be waived by either of the mutual consent Participating Corporations in whole or in part without prejudice to the right of First Majestic and Silvermexsuch Participating Corporation to rely on any other of them:
(a) the Arrangement Merger, with or without amendment, shall have been approved at the Silvermex Meeting Meetings in accordance with the Interim Order and the Merger shall have otherwise been approved by not less than two-thirds the requisite majorities of the votes cast shares entitled or required to vote thereon as determined by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2Court;
(b) the Arrangement reduction of the stated capital of the shares of Camp▇▇▇▇ ▇▇▇ GeoNova as contemplated in the Proxy Circular shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Ordertheir respective Meetings;
(c) the Interim Order opinion of Grif▇▇▇▇▇ ▇▇▇u▇▇▇▇ & ▇artners as to the fairness of the Merger, from a financial point of view, to the shareholders of each of Camp▇▇▇▇, ▇▇oNova and MSV, respectively, shall have been delivered prior to the date of mailing of the Proxy Circular and such opinion shall not have been withdrawn as of the Effective Date;
(d) the Final Order shall each have been obtained in form and terms substance satisfactory to each of Silvermex and First Majesticthe Participating Corporations, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(de) all other consents, orders, regulations and approvals, including regulatory and judicial approvals and orders, required or desirable for the completion of the Merger shall have been obtained or received from the persons, authorities or bodies having jurisdiction in the circumstances;
(f) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedMerger;
(eg) the Participating Corporations shall have received satisfactory opinions from Canadian and U.S. counsel in respect of such legal matters, if any, as they may reasonably request;
(h) none of the consents, orders, regulations or approvals contemplated herein shall contain terms or conditions or require undertakings or security deemed unsatisfactory or unacceptable by any of the Participating Corporations;
(i) holders of Camp▇▇▇▇ ▇▇▇res, holders of GeoNova Shares and holders of MSV Shares holding, in the aggregate in each case, no greater than 5% of the outstanding Camp▇▇▇▇ ▇▇▇res, the GeoNova Shares and the MSV Shares, respectively, shall have exercised the right to dissent to the Merger;
(j) this Agreement shall not have been terminated pursuant to under Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonablySix; and
(jk) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the CBCA Arrangement and the other transactions contemplated herein, the failure of which Quebec Arrangement are both to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect occur on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunder.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties to complete consummate the transactions contemplated by this Agreement shall be hereby, and in particular the Arrangement, are subject to the satisfaction, on or before the Effective DateDate or such other time specified, of the following conditions precedentconditions, each any of which may only be waived by the mutual written consent of First Majestic and Silvermexsuch Parties without prejudice to their right to rely on any other of such conditions:
(a) the Arrangement Resolution shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast passed by the Silvermex Securityholders who are represented Monterey Shareholders in person or by proxy thereat in accordance with the manner contemplated by Article 2Arrangement Provisions, the constating documents of Monterey, and the requirements of any applicable regulatory authorities;
(b) the Arrangement and this Agreement, with or without amendment, shall have been approved at by the Silvermex Meeting 1093681 Shareholder(s), the 1093682 Shareholder(s), the 1093683 Shareholder(s) and the 1093684 Shareholder(s) to the extent required by, and in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by with, the Business Corporations Act or Arrangement Provisions and the Interim Order;constating documents of each of 1093681, 1093682, 1093683, and 1093684.
(c) the Interim Order and the Final Order shall each have been obtained granted in form and terms substance satisfactory to each of Silvermex and First Majesticthe Parties, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) the Articles of Arrangement to be filed with the Registrar in accordance with the Arrangement shall be in form and substance satisfactory to the Parties, acting reasonably;
(e) all other consents, orders, regulations and approvals, including regulatory and judicial approvals and orders required or necessary or desirable for the completion of the transactions provided for in this Agreement and the Plan of Arrangement shall have been obtained or received from the persons, authorities or bodies having jurisdiction in the circumstances, each in form acceptable to the Parties;
(f) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;; and
(eg) this Agreement shall not have been terminated pursuant to under Article 6;
(f) Silvermex shall have received any required approval of 7. Except for the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to timeconditions set forth in this §5.1 which, shall have been authorized for listing on the TSX and the NYSEby their nature, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will may not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consentswaived, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated other conditions in this §5.1 may be waived, either in whole or in part, by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of Parties, as the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall case may be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with at its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderdiscretion.
Appears in 1 contract
Sources: Arrangement Agreement
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement Transaction shall be subject to the satisfaction, on or before the Effective DateTime, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic Acquisitionco and Silvermexthe Company:
(a) the Arrangement Transaction Resolution shall have been approved by (i) 66 2/3% of the votes cast on the Transaction Resolution by the Company Shareholders present in person or by proxy at the Company Meeting, and (ii) a simple majority of the votes cast on the Transaction Resolution by the Company Shareholders present in person or by proxy at the Company Meeting, excluding Company Shares held by the senior officers of the Company;
(b) the Transaction shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Company Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained on terms consistent with this Agreement and in a form and terms satisfactory to each of Silvermex and First Majesticthe Parties, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Partysuch Parties, acting reasonably, on appeal or otherwise;
(d) the Articles of Arrangement shall be in content consistent with this Agreement and in form satisfactory to the Parties acting reasonably;
(e) there shall not be in force any Law, final and non-appealable injunction, order or decree prohibiting, restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding Transaction;
(other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with f) the Regulatory Approvals which shall have been obtained;obtained or satisfied on terms and conditions satisfactory to the Parties acting reasonably; and
(eg) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunder.
Appears in 1 contract
Sources: Combination Agreement (Masonite International Corp)
Mutual Conditions Precedent. The respective obligations of the Parties hereto to complete each step of the transactions Business Combination contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived only by the mutual consent of First Majestic and Silvermexthe Parties:
(a) the Arrangement shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedBusiness Combination;
(eb) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date7;
(c) between the date hereof and the Effective Dateexcept as contemplated herein, there each Party shall not have occurredentered into any transaction or contract which would have a material effect on the financial and operational condition, or the assets of each Party, excluding those transactions or contracts undertaken in the judgment ordinary course of First Majesticbusiness, acting reasonably, a Material Adverse Change to Silvermexwithout first discussing and obtaining the approval of the other Party;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action requisite approval of the shareholders of Plantfuel of the Amalgamation shall have been taken by Silvermex, to permit the consummation of the Arrangement;obtained; and
(e) holders of more than 5% the requisite approval of the issued and outstanding Silvermex Shares shareholder of BeeImmune of the Amalgamation shall have been obtained. If any of the above conditions shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending been complied with or threatened any suit, action or proceeding waived by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective DateCompletion Deadline or, written resignations effective as of if earlier, the Effective Timedate required for the performance thereof, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic then a Party may not rely on terminate this Agreement in circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of a breach of this Agreement by the Party terminating the Agreement. In the event that the failure to satisfy any one or more of the above conditions precedent as results from a basis for non-compliance material default by it with a Party of its obligations under this Agreement and if the condition such condition(s) precedent would have been satisfied but for such default, such defaulting Party shall not rely on such failure (to satisfy one or more of the above conditions) as a material default by First Majestic in complying basis for its own non-compliance with its obligations hereunderunder this Agreement.
Appears in 1 contract
Sources: Business Combination Agreement
Mutual Conditions Precedent. The respective obligations of the Parties Fund Entities to complete the transactions contemplated by this Agreement shall be subject to the fulfilment or satisfaction, on or before the Effective Date, of each of the following conditions precedentconditions, each any of which may only be waived collectively by the mutual consent of First Majestic and Silvermexthem without prejudice to their right to rely on any other condition:
(a) the Arrangement Interim Order shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained granted in form and terms substance satisfactory to each of Silvermex and First Majesticthe Fund Entities, acting reasonably, not later than November 9, 2010 or such later date as the parties hereto may agree and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, such parties on appeal or otherwise;
(b) the Arrangement Resolution shall have been approved by the requisite number of votes cast by the Unitholders at the Meeting in accordance with the provisions of the Interim Order and any applicable regulatory requirements;
(c) the Final Order shall have been granted in form and substance satisfactory to the Fund Entities, acting reasonably, not later than December 31, 2010 or such later date as the parties hereto may agree;
(d) there the Articles of Arrangement and all necessary related documents, in form and substance satisfactory to the Fund Entities, acting reasonably, shall not be have been accepted for filing by the Registrar together with the Final Order in force any order or decree restraining or enjoining the consummation accordance with subsection 193(10) of the transactions contemplated ABCA;
(e) no material action or proceeding shall be pending or threatened by this Agreement any person, company, firm, governmental authority, regulatory body or agency and there shall be no proceeding action taken under any existing applicable law or regulation, nor any statute, rule, regulation or order which is enacted, enforced, promulgated or issued by any court, department, commission, board, regulatory body, government or governmental authority or similar agency, domestic or foreign, that:
(i) makes illegal or otherwise directly or indirectly restrains, enjoins or prohibits the Arrangement or any other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;herein; or
(eii) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval results in a judgment or assessment of the TSX material damages directly or indirectly relating to the transactions contemplated herein;
(f) all necessary material third party and regulatory consents, exemptions, approvals and authorizations with respect to the transactions contemplated hereby shall have been completed or obtained including, without limitation, any required consents and approvals from EnerMark's principal lenders and noteholders such that no default occurs or accelerated repayment of indebtedness is required as a result of the Arrangement under EnerMark's bank credit facility or senior secured notes;
(g) each of the First Majestic Shares issuable (i) covenants, acts and undertakings of the Fund Entities to be performed or complied with on or before the Effective Date pursuant to the Arrangement and (ii) upon exercise terms of the Replacement Warrants from time to time, this Agreement shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuanceduly performed or complied with;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed EnerMark Board on behalf of Silvermex by two directors or senior executive officers EnerMark, and in its capacity as administrator of Silvermexthe Fund and general partner of EELP, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, determined in its sole and absolute discretion that to proceed with the Arrangement would not be in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation best interests of the Arrangement;
(e) holders of more than 5% of Fund, EELP and the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunderUnitholders; and
(i) Silvermex the TSX and the NYSE shall have provided conditionally approved the listing or the substitutional listing of the: (i) Common Shares to First Majesticbe issued pursuant to the Arrangement; and (ii) Common Shares issuable following the Effective Time on exercise of the TURIP Rights and the Stock Options, on or before subject only to the filing of required documents which cannot be filed prior to the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunder.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties each party hereto to complete the transactions contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedentconditions, each none of which may only be waived unilaterally by the mutual consent of First Majestic and Silvermexany Party in whole or in part:
(a) the Arrangement Arrangement, with or without amendment, shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(cb) the Interim Order and the Final Order shall each have been obtained in form and terms substance satisfactory to each the Company and Newco;
(c) the TSX shall have received notice of Silvermex the Arrangement in accordance with their rules and First Majestic, acting reasonablypolicies, and shall not have been set aside or modified in a manner unacceptable no objection to either Party, acting reasonably, on appeal or otherwisethe Arrangement as of the Effective Date;
(d) the TSX, or such other recognized stock exchange acceptable to Newco, shall have conditionally approved the listing of the Newco Common Shares issuable under the Arrangement, subject to compliance with the requirements of the TSX or such other stock exchange;
(e) the transactions contemplated in the Purchase Agreement shall have been completed or deemed to be completed;
(f) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement Agreement;
(g) all material regulatory requirements shall have been complied with and there shall be no proceeding (all other than an appeal made in connection with material consents, agreements, orders and approvals, including regulatory and judicial approvals and orders, necessary for the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by provided for in this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which shall have been obtainedobtained or received from the Persons, authorities or bodies having jurisdiction in the circumstances;
(eh) none of the consents, orders, regulations or approvals contemplated herein shall contain conditions or require undertakings or security deemed unsatisfactory or unacceptable by the Company or Newco, acting reasonably;
(i) dissent rights shall not have been exercised prior to the Effective Date by holders of 0.5% or more of the Common Shares; and
(j) this Agreement shall not have been terminated pursuant to under Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunder4.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties parties hereto to complete the transactions contemplated by this Agreement and to file the documents required to give effect to the Arrangement shall be subject to satisfaction of the satisfaction, following conditions on or before the Effective Date, of the following conditions precedent, each any of which (except for those provided for in Sections (a), (b), (c), (d), (e), (f), (i), (j), (k) (l) and (t)) may only be waived by the mutual consent any party hereto in whole or in part without prejudice to such party's right to rely on any other of First Majestic and Silvermexthem:
(a) the Arrangement shall have been approved and adopted by Lincoln Shareholders at the Silvermex Lincoln Meeting by not less than two-thirds of Special Resolution in accordance with the votes cast Interim Order and the Arrangement shall have otherwise been approved and adopted by the Silvermex Securityholders who are represented in person requisite majorities of persons entitled or required to vote thereon as determined by proxy thereat in the manner contemplated by Article 2Court;
(b) LPT, as the Arrangement sole shareholder of LPT Sub, shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim OrderArrangement;
(c) the Interim Order and the Final Order shall each have been obtained from the Court in form and terms satisfactory to each the manner contemplated by Section 2.02 of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwisethis Agreement;
(d) the Exchange shall have accepted the Arrangement, the Consolidation, the Private Placement and the other transactions contemplated by this Agreement as part of LPT's "Qualifying Transaction" under the rules and policies of the Exchange, subject to compliance with the usual requirements of such Exchange;
(e) all other consents, orders, regulations and approvals, including regulatory and judicial approvals and orders, necessary or desirable for the completion of the transactions provided for in this Agreement and the Plan of Arrangement shall have been obtained or received from the persons, authorities or bodies having jurisdiction in the circumstances;
(f) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;
(e) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) Lincoln and LPT shall have received advice of tax counsel confirming the First Majestic Shares issuable (i) pursuant to Canadian and United States tax consequences of the Arrangement and (ii) upon exercise of as described in the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuanceInformation Circular;
(h) the issuance none of the First Majestic consents, orders, regulations or approvals contemplated herein shall contain terms or conditions or require undertakings or security deemed unsatisfactory or unacceptable by any of the parties hereto, acting reasonably;
(i) the various issuances and exchanges of Lincoln Shares, Post Consolidation LPT Shares, warrants or other securities convertible or exercisable to acquire Post Consolidation LPT Shares and Replacement Warrants the certificates representing such securities as contemplated by the Arrangement will have been approved by all necessary corporate action to permit such securities to be issued, if applicable, as fully paid and non-assessable and will be exempt from the registration requirements of the U.S. Securities 1933 Act and the issuance of the First Majestic Shares registration and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws securities laws in each of the Provinces of Canada in which holders of Silvermex securities Lincoln Shares are resident; and such First Majestic LPT securities will not be subject to hold periods under the Securities Laws securities laws of Canada or the United States except as may be imposed by Rule Rules 144 and 145 under the U.S. Securities 1933 Act with respect to affiliates or except as disclosed in the Silvermex Information Circular or except by reason of the existence of any controlling interest in First Majestic LPT pursuant to the Securities Laws securities laws of any applicable jurisdiction;
(ij) all Antitrust Clearances this Agreement shall not have been terminated under Article Six;
(k) the Continuance shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, approved by Special Resolution at the Lincoln Meeting and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex Continuance shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):completed;
(al) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date Consolidation shall have been duly performed approved by Ordinary Resolution at the LPT Meeting and observed by Silvermex in all material respectsthe Consolidation shall have been made effective under the BCBCA;
(bm) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic Name Change shall have received a certificate of Silvermex addressed to First Majestic and dated been made effective under the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective DateBCBCA;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(dn) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action Debt Settlement shall have been taken by Silvermexcompleted, subject to permit the consummation completion of the Arrangement;
(eo) holders of more than 5% of the issued and outstanding Silvermex Escrowed Shares shall not have exercised the Dissent Rights in respect of the Arrangementbeen transferred to persons designated by Lincoln;
(fp) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation all of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermexoutstanding Lincoln Options shall have been cancelled;
(iiq) seeking to prohibit or materially limit the ownership or operation by First Majestic or any all of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiaryoutstanding LPT Options shall have been cancelled;
(iiir) seeking the Advance shall have been paid to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of SilvermexLincoln;
(ivs) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to Private Placement shall have a Material Adverse Effect on Silvermex or First Majesticbeen completed;
(gt) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) Filings shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of accepted for filing by the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunderRegistrar; and
(iu) Silvermex dissent rights shall not have provided been exercised with respect to First Majestic, on either the Continuance or before the Effective Date, written resignations effective as Arrangement by holders of Lincoln Shares which will in the aggregate represent 5% or more of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely Lincoln Shares outstanding on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderLincoln Record Date.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties to complete consummate the transactions contemplated by this Agreement shall be hereby, and in particular the Arrangement, are subject to the satisfaction, on or before the Effective DateDate or such other time specified, of the following conditions precedentconditions, each any of which may only be waived by the mutual written consent of First Majestic and Silvermexsuch Parties without prejudice to their right to rely on any other of such conditions:
(a) the Arrangement Interim Order shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained granted in form and terms substance satisfactory to each of Silvermex and First Majesticthe Parties, acting reasonably, and such order shall not have been set aside or modified in a manner unacceptable to either Partythe Parties, acting reasonably, on appeal or otherwise;
(b) the Arrangement Resolution shall have been passed by the NRG Shareholders at the NRG Meeting in accordance with the Arrangement Provisions, the constating documents of NRG, the Interim Order and the requirements of any applicable regulatory authorities;
(c) the Arrangement and this Agreement, with or without amendment, shall have been approved by the sole Spinco Shareholder to the extent required by, and in accordance with, the Arrangement Provisions and the constating documents of Spinco;
(d) the Final Order shall have been granted in form and substance satisfactory to the Parties, acting reasonably;
(e) all other consents, orders, regulations and approvals, including regulatory and judicial approvals and orders required or necessary or desirable for the completion of the transactions provided for in this Agreement and the Plan of Arrangement shall have been obtained or received from the persons, authorities or bodies having jurisdiction in the circumstances, each in form acceptable to the Parties;
(f) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;; and
(eg) this Agreement shall not have been terminated pursuant to under Article 6;
(f) Silvermex shall have received any required approval of 7. Except for the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to timeconditions set forth in this §5.1 which, shall have been authorized for listing on the TSX and the NYSEby their nature, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will may not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consentswaived, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated other conditions in this §5.1 may be waived, either in whole or in part, by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of Parties, as the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall case may be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with at its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderdiscretion.
Appears in 1 contract
Sources: Arrangement Agreement
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement shall be Agreement, are subject to the satisfactionfulfillment, on or before the Effective DateTime, of each of the following conditions precedent, each of which may only be waived by with the mutual consent of First Majestic and Silvermexthe Parties:
(a) the Arrangement Resolution shall have been approved and adopted by the JDS Silver Shareholders at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex JDS Silver Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(cb) the Interim Order and the Final Order shall each have been obtained in form and on terms satisfactory to each of Silvermex and First Majestic, acting reasonablyconsistent with this Agreement, and shall not have been set aside or modified in a manner unacceptable to either PartyJDS Silver and Purchaser, acting reasonably, on appeal or otherwise;
(dc) there shall not be in force exist any prohibition at Law, including a cease trade order, injunction or other prohibition or order at Law or decree restraining under applicable legislation, against Purchaser or enjoining JDS Silver which shall prevent the consummation of the Arrangement;
(d) no action, suit or proceeding, shall have been taken under any applicable Law or by any Governmental Entity, and no Law, policy, decision or directive (having the force of Law) shall have been enacted, promulgated, amended or applied, in each case:
(i) to enjoin or prohibit the Plan of Arrangement or the transactions contemplated by this Agreement and there shall be no proceeding Agreement;
(other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by ii) which would render this Agreement that would, if successful, result or the Voting Agreements unenforceable in an order any way or ruling that would preclude completion of frustrate the transactions contemplated by this Agreement in accordance with the terms purpose and intent hereof or thereof; or
(iii) resulting in any judgment or assessment of damages, directly or indirect, which, individually or in the aggregate, has had or would otherwise be inconsistent reasonably expected to have a Material Adverse Effect with the Regulatory Approvals which have been obtainedrespect to JDS Silver;
(e) the Escrow Agreement shall have been entered into by Purchaser, the Vendors’ Representative and the Escrow Agent; and
(f) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it accordance with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderterms.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties hereto to complete the transactions Business Combination contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived only by the mutual consent of First Majestic and Silvermexthe Parties:
(a) CBD, upon completion of the Arrangement Business Combination, will meet the minimum original listing requirements of the CSE and the CSE shall have been conditionally approved at the Silvermex Meeting by not less than two-thirds listing of the votes cast by CBD Shares on the Silvermex Securityholders who are represented in person or by proxy thereat in CSE, subject to completion of the manner contemplated by Article 2Business Combination and completion of the customary listing requirements of the CSE;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedBusiness Combination;
(ec) this Agreement shall not have been terminated pursuant to Article 68;
(d) all Regulatory Approvals and corporate approvals shall have been obtained;
(e) each Party shall not have entered into any transaction or contract which would have a material effect on the financial and operational condition, or the assets of each Party, excluding those transactions or contracts undertaken in the ordinary course of business, without first discussing and obtaining the approval of the other Party;
(f) Silvermex shall have received any required the requisite approval of the TSX to World Class Shareholders of the transactions contemplated herein;Amalgamation and WCE Share Split shall have been obtained; and
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise requisite approval of the Replacement Warrants from time to time, CBD Shareholders for the Amalgamation shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;obtained; and
(h) the issuance number of WCE Shares in respect of which shareholders of World Class have dissented in connection with the resolutions authorizing the Amalgamation shall not exceed 5% of the First Majestic Shares number of issued and Replacement Warrants will be exempt from the registration requirements outstanding WCE Shares. If any of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will above conditions shall not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and complied with or waived by the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, Parties on or before the Effective DateCompletion Deadline or, of each of if earlier, the following conditions precedent (each of which is date required for the exclusive benefit of First Majestic and performance thereof, then a Party may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under terminate this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of a breach of this Agreement by the Party terminating the Agreement. In the event that the failure to satisfy any one or more of the above conditions precedent as results from a basis for non-compliance material default by it with a Party of its obligations under this Agreement and if the condition such condition(s) precedent would have been satisfied but for such default, such defaulting Party shall not rely on such failure (to satisfy one or more of the above conditions) as a material default by First Majestic in complying basis for its own non- compliance with its obligations hereunderunder this Agreement.
Appears in 1 contract
Sources: Business Combination Agreement
Mutual Conditions Precedent. The respective obligations of the Parties parties hereto to complete the transactions contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic BCE and SilvermexAliant:
(a) the Arrangement shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in this Section 5.1(a) 5.1 which may be imposed by the Business Corporations Act or Interim Order shall have been satisfied;
(b) the Arrangement Resolution shall have been approved by the Aliant Shareholders in accordance with the Interim OrderOrder and Section 2.3 hereof;
(c) the Interim Order and the Final Order shall each have been obtained in form and on terms satisfactory to each of Silvermex Aliant and First MajesticBCE, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Partysuch parties, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any judgement, injunction, order or decree decree, and there shall not exist or have been passed any Law, prohibiting, preventing, restraining or enjoining the consummation of the transactions contemplated by this Agreement (provided that in the event there is any such judgement, injunction, order or decree, each party shall, at the request of any other party, use its Best Efforts to contest or appeal such judgement, injunction, order or decree), and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling of a Governmental Entity that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedobtained or would reasonably be expected to require the divestiture of any material assets or otherwise materially affect the transactions contemplated herein;
(e) the Aliant Tax Ruling shall have been obtained in form and substance satisfactory to each of Aliant and BCE, acting reasonably;
(f) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, there shall not have been authorized for listing on any change or proposed change in the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities income tax Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates interpretation or except as disclosed administration thereof, or any change or proposed change in the Silvermex Circular telecommunications regulatory Laws of Canada or except by reason the interpretation or administration thereof, which change would, as a consequence of the existence completion of any controlling interest the transactions contemplated by this Agreement, in First Majestic pursuant to the Securities Laws reasonable opinion of any applicable jurisdiction;
Aliant or BCE, (i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, result in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic Aliant, BCE, ▇▇▇▇ Canada, the Wireless Operations, the Rural Wireline Operations, BNG, NTLP, TLP, Holdings LP, Wireline LP, Parent Trust or Silvermex shall have been obtained Holdings Trust, or received on terms that will (ii) be materially adverse to their respective securityholders, which result cannot have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent be effectively dealt with by the parties using their reasonable efforts to do so through an amendment to this Agreement or the Obligations Plan of First Majestic. The obligations of First Majestic to complete the transactions Arrangement, or through an alternative transaction, all as contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respectsSection 6.2;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(fh) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
proceeding: (i) seeking to restrain prohibit or prohibit restrict the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement herein or seeking to obtain from either of the Parties Aliant, BCE or ▇▇▇▇ Canada any damages that are material directly or indirectly in relation to Silvermex;
connection with the transactions contemplated herein, (ii) seeking to prohibit or materially limit the ownership, full rights of ownership or operation by First Majestic BCE, Aliant, ▇▇▇▇ Canada, Holdings LP, Wireline LP, Parent Trust or any of the First Majestic Material Subsidiaries Holdings Trust or their respective subsidiaries of any material portion of the business operations or assets of Silvermex or any Silvermex Subsidiary to be acquired hereunder or to compel First Majestic or any of the First Majestic Material Subsidiaries them to dispose of or hold separate any material portion of the business such operations or assets of Silvermex assets, or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex Aliant, BCE, ▇▇▇▇ Canada, BNG, NTLP, TLP, Holdings LP, Wireline LP, Parent Trust or First MajesticHoldings Trust;
(gi) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) Regulatory Approvals shall have been obtained or received satisfied on terms which are acceptable and conditions satisfactory to First MajesticBCE and Aliant, acting reasonably;
(hj) telephone directory arrangements acceptable to BCE and Aliant, each acting reasonably, shall have been settled and entered into by Wireline LP;
(k) the units of Parent Trust shall be conditionally approved for listing on the TSX on the trading day following the Closing Date (including any units issuable upon the exchange of Exchangeable LP Units and GP Shares and Class B LP Units), and no order, ruling or determination having the effect of suspending the issuance or ceasing the trading of the Lock-up Agreements units of Parent Trust or any securities of Aliant, BNG, NTLP, TLP, BNQ, Holdings LP, Wireline LP, Parent Trust or Holdings Trust shall have been issued or made by any stock exchange, securities commission, court or other regulatory authority and be continuing in effect and no proceedings for that purpose shall have been instituted or pending or, to the knowledge of any of the parties, shall be contemplated or threatened by any stock exchange, securities commission, court or other Governmental Entity;
(l) Aliant and remain in full force BCE shall be satisfied, acting reasonably, that all appropriate actions have been completed and effect, unamended, all requisite documents and each agreements have been executed to permit Wireline LP to draw down from its lenders the cash portion of the parties thereto (other than First Majestic) shall bepurchase price required for the Property Exchange Arrangements, in all material respects, in full compliance with their respective obligations thereunderincluding as applicable the Ancillary Agreements; and
(im) Silvermex Aliant Shareholders holding, directly or indirectly, no more than 5% of the outstanding Aliant Common Shares shall have provided to First Majestic, on exercised dissent or before similar rights in connection with the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderArrangement.
Appears in 1 contract
Sources: Property Exchange and Arrangement Agreement (Bce Inc)
Mutual Conditions Precedent. The respective obligations of the Parties to complete consummate the transactions contemplated by this Agreement shall be hereby, and in particular the Amalgamation, are subject to the satisfaction, on or before the Effective DateDate or such other time specified, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermexconditions:
(a) the Arrangement Articles of Amalgamation to be filed with the Director in accordance with the Amalgamation shall have been approved at the Silvermex Meeting by not less than two-thirds be in form and substance satisfactory to each of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2Parties, acting reasonably;
(b) there being no prohibition at Applicable Law against the Arrangement shall have been approved at completion of the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim OrderAmalgamation;
(c) the Interim Order and TSX-V has accepted the Final Order shall each have been obtained in form and terms satisfactory to each delisting of Silvermex and First Majestic, acting reasonablythe Altitude Common Shares, and shall not have been set aside or modified in a manner unacceptable such other matters required to either Party, acting reasonably, on appeal or otherwiseeffect the transactions contemplated hereby that may require TSX-V approval;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of CSE has accepted for listing the Altitude Common Shares and the Altitude Disposition, and such other matters required to effect the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened hereby that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedmay require CSE approval;
(e) this Agreement shall not have been terminated pursuant to Article 6;in accordance with its terms; and
(f) Silvermex Altitude and Vibe shall have received any required approval be satisfied, in their sole discretion, with the results of all due diligence investigations including in the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise case of the Replacement Warrants from time to timeAltitude, shall have been authorized for listing on the TSX and the NYSEgreater certainty, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act but without limitation, with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason U.S. Targets. The foregoing conditions are for the mutual benefit of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms Parties and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periodsmay be waived, in connection withwhole or in part, or required jointly by the Parties, without prejudice to permit the consummation their right to rely on any other such conditions, at any time. If any of the Arrangement and the other transactions contemplated herein, the failure of which to obtain foregoing conditions are not satisfied or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, waived on or before the Effective Outside Date, of each or if any circumstance, fact, change, event or occurrence shall have occurred that would render it impossible for any of the following foregoing conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed satisfied on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in Outside Date, then a Party may terminate this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except by written notice to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, other Parties in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of the above conditions precedent as a basis for non-compliance by it with its obligations under such terminating Party’s breach of this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderAgreement.
Appears in 1 contract
Sources: Amalgamation Agreement
Mutual Conditions Precedent. The respective obligations of the Parties hereto to complete each step of the transactions Business Combination contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived only by the mutual consent of First Majestic and Silvermexthe Parties:
(a) the Arrangement there shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person no action taken under any applicable Law or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order Government Authority and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedBusiness Combination;
(eb) this Agreement shall not have been terminated pursuant to Article 68;
(c) all Regulatory Approvals (including CSE approvals) and corporate approvals shall have been obtained;
(d) each Party shall not have entered into any transaction or contract which would have a material effect on the financial and operational condition, or the assets of each Party, excluding those transactions or contracts undertaken in the ordinary course of business, without first discussing and obtaining the approval of the other Party;
(e) the MichiCann Shareholder Approval shall have been obtained;
(f) Silvermex the Tidal Shareholder Approval shall have received any required approval of the TSX to the transactions contemplated herein;been obtained; and
(g) Tidal shall have completed the First Majestic Shares issuable (i) pursuant to Tidal Share Consolidation, the Arrangement Tidal Name Change and (ii) upon exercise the Tidal Director Appointments. If any of the Replacement Warrants from time to time, above conditions shall not have been authorized for listing on complied with or waived by the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, Parties on or before the Effective DateCompletion Deadline or, of each of if earlier, the following conditions precedent (each of which is date required for the exclusive benefit of First Majestic and performance thereof, then a Party may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under terminate this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of a breach of this Agreement by the Party terminating the Agreement. In the event that the failure to satisfy any one or more of the above conditions precedent as results from a basis for non-compliance material default by it with a Party of its obligations under this Agreement and if the condition such condition(s) precedent would have been satisfied but for such default, such defaulting Party shall not rely on such failure (to satisfy one or more of the above conditions) as a material default by First Majestic in complying basis for its own noncompliance with its obligations hereunderunder this Agreement.
Appears in 1 contract
Sources: Business Combination Agreement (Tidal Royalty Corp.)
Mutual Conditions Precedent. The respective obligations of the Parties parties hereto to complete the Amalgamation and the other transactions contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived only by the mutual consent of First Majestic Newco, Newco II and SilvermexMAAX:
(a) 6.1.1 a quorum of Shareholders at the Arrangement MAAX Meeting shall have been present and the Amalgamation shall have been approved at the Silvermex MAAX Meeting by not less than (i) at least two-thirds of the votes cast on a resolution approving the by-law relating to the Amalgamation by the Silvermex Securityholders who are represented Shareholders, present in person or represented by proxy thereat in at the manner contemplated by Article 2MAAX Meeting and (ii) any other required Shareholders approval to comply with any securities Laws;
(b) 6.1.2 the Arrangement Appropriate Regulatory Approvals shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form accordance with Article 4 and terms satisfactory to each of Silvermex shall be in full force and First Majestic, acting reasonably, effect and shall not have been set aside be the subject of any appeal, stop-order or modified in proceedings seeking a manner unacceptable to either Party, acting reasonably, on appeal stop-order or otherwiseany revocation proceedings;
(d) 6.1.3 there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement)proceeding, of a judicial or administrative nature or otherwise, otherwise in progress (or threatened in writing by a Governmental Entity) that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude (i) reasonably be expected to cease trade, enjoin, prohibit or impose material limitations or conditions on the completion of the transactions contemplated by this Agreement Amalgamation in accordance with the its terms hereof or would (ii) otherwise be inconsistent with the Appropriate Regulatory Approvals which have been obtained;; and
(e) 6.1.4 this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunder7.
Appears in 1 contract
Sources: Merger Agreement (MAAX Holding Co.)
Mutual Conditions Precedent. The respective obligations of the Parties parties hereto to complete the transactions contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic the Purchaser and Silvermexthe Company:
(a) the Arrangement Resolution shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast on such resolution by the Silvermex Company Securityholders who are represented present in person or voting by proxy thereat at the Company Meeting, as well as by the minority as contemplated in the manner contemplated by Article 2Section 2.3(2);
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim OrderOrder shall have been satisfied;
(c) the Interim Order and the Final Order shall each have been obtained in form and on terms satisfactory to each of Silvermex the Company and First Majesticthe Purchaser, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Partysuch parties, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any final and non-appealable judgement, injunction, order or decree preventing, restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling of a Governmental Entity that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;
(e) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX Purchaser ADSs to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) be issued pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing listed on the TSX and the NYSE, NYSE (subject only to official notice of issuance;
(h) , the issuance of the First Majestic Purchaser Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdictionbeing a condition precedent thereof);
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(fg) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
proceeding: (i) seeking to prohibit or restrict the acquisition by the Purchaser or any of its subsidiaries of any the Company Common Shares, seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties Company or the Purchaser any damages that are material directly or indirectly in relation to Silvermex;
connection with the Arrangement, (ii) seeking to prohibit or materially limit the ownership or operation by First Majestic the Purchaser or any of the First Majestic Material Subsidiaries its subsidiaries of any material portion of the business or assets of Silvermex the Company or any Silvermex Subsidiary of its subsidiaries or to compel First Majestic the Purchaser or any of the First Majestic Material Subsidiaries its subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex the Company or any Silvermex Subsidiary;
of its subsidiaries, (iii) seeking to impose limitations on the ability of First Majestic the Purchaser or any of its subsidiaries to acquire or hold, or exercise full rights of ownership of of, any Silvermex the Company Common Shares, including the right to vote the Silvermex Company Common Shares purchased by them on all matters properly presented to the shareholders of Silvermex;
the Company, (iv) seeking to prohibit First Majestic the Purchaser or any of the First Majestic Material Subsidiaries its subsidiaries from effectively controlling in any material respect the business or operations of Silvermex the Company or any Silvermex Subsidiary; or
of its subsidiaries, or (v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex the Company or First Majestic;the Purchaser; and
(gh) all consents, approvals, authorizations and waivers of any Persons the Regulatory Approvals (other than Governmental Entities) which are required, necessary the orders or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreementsapprovals referred to in Section 2.7 hereof) shall have been obtained or received satisfied on terms which are acceptable and conditions satisfactory to First Majesticthe Purchaser and the Company (but in the latter case only insofar as it would directly affect the Company Securityholders), acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunder.
Appears in 1 contract
Sources: Arrangement Agreement (Alcatel)
Mutual Conditions Precedent. The respective obligations of the Parties parties hereto to complete the transactions contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Closing Date, of the following conditions precedent, each of which may only be waived by the mutual written consent of First Majestic Parent and Silvermexthe Company:
(ai) the Arrangement Final Order, in a form reasonably satisfactory to the parties to this Agreement, shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement obtained and shall have been approved accepted for filing by the Registrar of Companies under the BC Act at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which or before 4:30 p.m. (Vancouver time), December 1, 2000, or such other date as may be imposed mutually agreed upon by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained parties to this Agreement in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonablywriting, and shall not have been set aside or modified in a manner reasonably unacceptable to either Party, acting reasonably, such parties on appeal or otherwise;
(dii) all Applicable Regulatory Approvals shall have been obtained;
(iii) there shall not be in force any order or decree from a Governmental Entity of competent jurisdiction restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, brought by a Governmental Entity in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would materially alter the terms and conditions of this Agreement or the Arrangement, or would otherwise be inconsistent with the Applicable Regulatory Approvals which have been obtained;
(eiv) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex Parent shall have received any required the approval of NASDAQ for the TSX to listing of the transactions contemplated herein;
(g) the First Majestic Shares shares of Parent Common Stock issuable (i) pursuant to the Arrangement and (ii) upon exercise terms of the Replacement Warrants from time to timeCompany Special Shares, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental EntitySupport Agreement, and the expiry of any waiting periodsVoting, in connection with, or required to permit the consummation of the Arrangement Exchange and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respectsCash Put Trust Agreement;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunder.
Appears in 1 contract
Sources: Acquisition Agreement (Abgenix Inc)
Mutual Conditions Precedent. The respective obligations of the Parties hereto to complete the transactions Business Combination contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived only by the mutual consent of First Majestic and Silvermexthe Parties:
(a) the Arrangement shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedBusiness Combination;
(eb) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Datesection 8.1;
(c) between the date hereof all Regulatory Approvals and the Effective Date, there corporate approvals shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermexbeen obtained;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action requisite approval of the Bendu Shareholders of the Amalgamation shall have been taken by Silvermex, to permit the consummation of the Arrangement;obtained; and
(e) holders the number of more than 5Bendu Shares in respect of which shareholders of Bendu have dissented in connection with the resolutions authorizing the Amalgamation shall not exceed 10% of the number of issued and outstanding Silvermex Shares Bendu Shares. If any of the above conditions shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending been complied with or threatened any suit, action or proceeding waived by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective DateCompletion Deadline or, written resignations effective as of if earlier, the Effective Timedate required for the performance thereof, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic then a Party may not rely on terminate this Agreement in circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of a breach of this Agreement by the Party terminating the Agreement. In the event that the failure to satisfy any one or more of the above conditions precedent as results from a basis for non-compliance material default by it with a Party of its obligations under this Agreement and if the condition such condition(s) precedent would have been satisfied but for such default, such defaulting Party shall not rely on such failure (to satisfy one or more of the above conditions) as a material default by First Majestic in complying basis for its own non-compliance with its obligations hereunderunder this Agreement.
Appears in 1 contract
Sources: Business Combination Agreement
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement shall be are subject to the satisfactionfulfillment, on or before the Effective DateTime, of each of the following conditions precedent, each of which is for the mutual benefit of the Parties, and may only be waived by the mutual consent of First Majestic and Silvermexthe Parties:
(a) the Arrangement Interim Order shall have been approved at granted on terms consistent with this Agreement and the Silvermex Meeting by Interim Order shall not less than two-thirds of have been set aside or modified in a manner unacceptable to either the votes cast by Purchaser or the Silvermex Securityholders who are represented in person Corporation, acting reasonably, on appeal or by proxy thereat in the manner contemplated by Article 2otherwise;
(b) the Arrangement Resolution shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim OrderOrder and applicable Laws;
(c) the Interim Final Order shall have been granted on terms consistent with this Agreement and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there the Articles of Arrangement shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by content consistent with this Agreement and there the Plan of Arrangement and in form satisfactory to the Parties acting reasonably;
(e) the Competition Act Approval shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;
(ef) no act, action, suit, proceeding, objection or opposition shall have been taken, entered or promulgated before or by any Governmental Entity (other than in relation to Competition Act Approval) or by any elected or appointed public official or private person in Canada or elsewhere, and no Law, regulation or policy, judgment, decision, order ruling or directive shall have been proposed enacted, promulgated, amended or applied, which would be reasonably expected to result in a Material Adverse Effect in respect of the Corporation or the Purchaser or that makes the Arrangement illegal or otherwise directly or indirectly enjoins, restrains or prohibits the completion of the Arrangement; and
(g) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it accordance with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderterms.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties parties hereto to complete the transactions contemplated Arrangement by this Agreement shall be filing a certified copy of the Final Order with the Registrar for acceptance are subject to the satisfactionsatisfaction of, or mutual waiver by the parties on or before the Effective Date, Time of each of the following conditions precedentconditions, each of which may only be waived by are for the mutual consent benefit of First Majestic Ayotte and SilvermexVerb:
(a) the Arrangement The ▇▇▇▇▇im Order shall have been approved at the Silvermex Meeting by not less than two-thirds obtained in form and substance satisfactory to each of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2parties, acting reasonably;
(b) the Arrangement shall have The Plan of Arrangement, without amendment or with amendments acceptable to Verb and Ayotte acting reasonably, shal▇ ▇▇▇▇ been approved at the Silvermex Verb Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or Verb Shareholders as required by the Interim Order;
(c) The Transaction shall have been approved at the Interim Order and Ayotte Meeting by the Final ▇▇▇▇▇e Shareholders;
(d) ▇▇▇ ▇inal Order shall each have been obtained in form and terms substance satisfactory to each of Silvermex and First Majesticthe parties, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(de) there shall not be All approvals and consents, regulatory or otherwise, which are required in force any order or decree restraining or enjoining connection with the consummation of the transactions contemplated by in this Agreement and there in the Plan of Arrangement shall have been obtained (including, without limitation, the approval of the Transaction by the Exchange and the listing or reservation for listing of the Ayotte Shares to be no proceeding (other than an appeal made in connection with i▇▇▇▇▇ pursuant to the Plan of Arrangement);
(f) The time period for the exercise of any right to dissent conferred upon Verb Shareholders in respect of the Arrangement shall have expired and Verb Shareholders shall not have exercised (and not abandoned) such right of dissent with respect to greater than 10% of the number of outstanding Verb Shares;
(g) No preliminary or permanent injunction, restraining order, cease trading order or order or decree of a judicial any domestic or foreign court, tribunal, governmental agency or other regulatory authority or administrative nature agency, board or otherwisecommission, in progress and no law, regulation, policy, directive or threatened that relates order shall have been enacted, promulgated, made, issued or applied to cease trade, enjoin, prohibit or results from impose material limitations on the Arrangement or the transactions contemplated by this Agreement that wouldherein or in the Plan of Arrangement and remain in effect and no such action, if successfulproceeding or order shall, result to the best of the knowledge of Verb or Ayotte be pending or threatene▇ ▇▇▇, without limiting the generality of the foregoing, no person shall have filed any notice of appeal of the Final Order, and no person shall have communicated to Verb or Ayotte (orally or in an order ▇▇▇▇▇▇g) any intention to appeal the Final Order which, in the reasonable opinion of Verb or ruling that Ayotte (on the advice of couns▇▇), would preclude make it inadvisable to proceed with the implementation of the Arrangement;
(h) There shall not exist any prohibition at law against the completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;Arrangement; and
(ei) this This Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunder.
Appears in 1 contract
Mutual Conditions Precedent. (1) The respective obligations of the Parties to complete consummate the transactions contemplated by this Agreement shall be hereby, and in particular the completion of the Transaction, are subject to the satisfaction, on or before the Effective DateDate or such other time specified, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermexconditions:
(a) the Arrangement The directors of AFI and Nuran, respectively, shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2Transaction;
(b) the Arrangement AFI Shareholder Resolution shall have been approved at passed by a special majority of AFI Shareholders or by 100% of the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed AFI Shareholders if the AFI Approval is obtained by the Business Corporations Act or the Interim Orderconsent resolution;
(c) Nuran shall have closed the Interim Order Nuran Financing and the Final Order Nuran Restructuring Transaction;
(d) the Transaction shall each have become effective on or prior to the Outside Date;
(e) all necessary approvals with respect to the Transaction, having been obtained, including but not limited to the approval of the CSE, and other applicable Governmental Authorities;
(f) all other consents, orders and approvals, including regulatory approvals and orders, necessary or desirable for the completion of the transactions provided for in this Agreement and the Transaction shall have been obtained or received from the Persons, authorities or bodies having jurisdiction in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and the circumstances;
(g) this Agreement shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwiseterminated under Article 9;
(dh) dissent rights shall not have been exercised with respect to the Transaction by AFI Shareholders which will in the aggregate represent 5% or more of the AFI Shares outstanding on the record date for the AFI Approval;
(i) the availability of prospectus exemptions for the Transaction under Applicable Canadian Securities Laws; and
(j) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;Transaction.
(e2) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval The foregoing conditions are for the mutual benefit of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing Nuran on the TSX one hand and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained AFI on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic hand and may be waived, in whole or in part, jointly by the Parties at any time. If any of the foregoing conditions are not satisfied or waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in then a Party may terminate this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except by written notice to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, other Parties in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of the above conditions precedent as a basis for non-compliance by it with its obligations under such terminating Party’s breach of this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderAgreement.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties to complete consummate the transactions contemplated by this Agreement shall be hereby, and in particular the Arrangement, are subject to the satisfaction, on or before the Effective DateDate or such other time specified, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermexconditions:
(a) on or prior to August 25 2010, the Arrangement Interim Order shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained granted in form and terms substance satisfactory to each of Silvermex and First Majesticthe Parties, acting reasonably, and such order shall not have been set aside or modified in a manner unacceptable to either Partythe Parties, acting reasonably, on appeal or otherwise;
(db) there shall not be in force any order or decree restraining or enjoining the consummation date of mailing of the transactions contemplated Joint Information Circulars, shall occur not later than September 2, 2010;
(c) the Zodiac Arrangement Resolution shall have been passed by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement)Zodiac Shareholders, of a judicial on or administrative nature or otherwiseprior to September 30, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement 2010 in accordance with the terms hereof or would otherwise be inconsistent with Interim Order and in form and substance satisfactory to each of the Regulatory Approvals which Parties, acting reasonably;
(d) the Transaction Resolution and the ordinary resolution of the Peninsula Shareholders approving the New Peninsula Option Plan shall have been obtainedpassed by the Peninsula Shareholders, on or prior to September 30, 2010 in accordance with applicable Laws and in form and substance satisfactory to each of the Parties, acting reasonably;
(e) this Agreement on or prior to September 30, 2010, the Final Order shall have been granted in form and substance satisfactory to the Parties acting reasonably and such order shall not have been terminated pursuant set aside or modified in a manner unacceptable to Article 6the Parties, acting reasonably, on appeal or otherwise;
(f) Silvermex shall have received any required approval the Articles of Arrangement to be filed with the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to Registrar in accordance with the Arrangement shall be in form and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions substance satisfactory to each of First Majestic and Silvermex the Parties, acting reasonably; and
(jg) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood thatoccurred not later than September 30, 2010. The foregoing conditions precedent are for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as mutual benefit of the date of this Agreement Parties and as may be waived, in whole or in part, by the Parties in writing at any time in their sole discretion without prejudice to any other rights which they may have. If any of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there said conditions shall not be pending satisfied or threatened any suit, action or proceeding waived in writing by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors date required for their performance and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for provided such non-compliance by it with its obligations under did not arise from the acts or omissions of the Party wishing to terminate, a Party may terminate this Agreement if by written notice to the condition precedent would other Parties in addition to the other rights and remedies it may have been satisfied but for a material default by First Majestic at law or in complying with its obligations hereunderequity against such other Parties.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties parties to complete consummate the transactions contemplated by this Agreement shall be subject to the satisfaction, fulfillment of the following conditions on or before the Effective Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermex:
(a) the Arrangement this Agreement shall have been approved at by special resolutions passed by the Silvermex Meeting by not less than two-thirds shareholders of each of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2Amalgamating Companies;
(b) REM shall not have received notices of dissent with respect to the Arrangement shall have been approved at Amalgamation from REM Shareholders who collectively hold more than 5% of the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Orderissued common shares of REM on a combined basis;
(c) the Interim Order Form 13 – Amalgamation Application and the Final Order other documents as are required shall each have been obtained in form and terms satisfactory delivered to each of Silvermex and First Majestic, acting reasonably, and the Registrar under the BCBCA for registration;
(d) this Agreement shall not have been set aside or modified terminated in a manner unacceptable to either Party, acting reasonably, on appeal or otherwiseaccordance with Section 8.9;
(de) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;
(e) this Agreement shall not have been terminated pursuant to Article 6Amalgamation;
(f) Silvermex the Amalgamation shall have received any required approval of been effected on or before December 31, 2009 or such other date as may be mutually agreed to by the TSX to the transactions contemplated herein;parties in writing; and
(g) the First Majestic Shares issuable (i) pursuant TSXV shall have, prior to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, issued its approval of the transactions contemplated herein. The conditions described in this Section 6.1 are for the benefit of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic REM, EEC and Newco and may be waived by First Majestic):
(a) all covenants them in their sole discretion, in whole or in part, at any time and agreements from time to time without prejudice to any other rights the waiving party may have hereunder. No waiver of Silvermex under the conditions described in this Agreement to be performed Section 6.1 is effective unless waived by each of REM, EEC and Newco. If any of the above conditions shall not have been complied with or observed waived by the parties on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) or, if earlier, the representations and warranties of Silvermex contained in date required for the performance thereof, then a Party may terminate this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of a breach of this Agreement by the Party terminating the Agreement. If the failure to satisfy any one or more of the above conditions precedent as results from a basis for non-compliance material default by it with a Party of its obligations under this Agreement and if the condition such condition(s) precedent would have been satisfied but for such default, such defaulting Party shall not rely on such failure (to satisfy one or more of the above conditions) as a basis for its own non-compliance with its obligations under this Agreement. The conditions described in this Section 6.2 are for the exclusive benefit of REM and may be waived by REM in its sole discretion, in whole or in part, at any time and from time to time without prejudice to any other rights which REM may have hereunder. If any of the above conditions shall not have been complied with or waived by REM on or before the Effective Date or, if earlier, the date required for the performance thereof, then, REM may terminate this Agreement in circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of a breach of this Agreement by REM. If the failure to satisfy any one or more of the above conditions precedent results from a material default by First Majestic in complying REM of its obligations under this Agreement and if such condition(s) precedent would have been satisfied but for such default, REM shall not rely on such failure (to satisfy one or more of the above conditions) as a basis for its own non-compliance with its obligations hereunderunder this Agreement.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement shall be Transactions are subject to the satisfaction, on or before the Effective Date, fulfillment of each of the following conditions precedent, each of which may only be waived by with the mutual consent of First Majestic and Silvermexthe Parties:
(a) the Arrangement URC Shareholder Approval shall have been approved at obtained in accordance with the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2Interim Order, applicable Law and this Agreement;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and on terms satisfactory to each of Silvermex and First Majestic, acting reasonablyconsistent with this Agreement, and shall not have been set aside or modified in a manner unacceptable to either PartyURC and the Sweetwater Investors, acting reasonably, on appeal or otherwise;
(dc) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Key Regulatory Approvals which have been obtained;
(e) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect;
(d) the Nasdaq Approval shall have been obtained and remain in full force and effect;
(e) the Investor Rights Agreement shall have been duly executed and delivered by the parties thereto;
(f) no applicable Law shall be in effect that makes the consummation of the Arrangement illegal or otherwise prohibits or enjoins the Sweetwater Investors or URC from consummating the Arrangement;
(g) no injunction, unamendedrestraining order or other decision, ruling or order of any court or administrative tribunal of competent jurisdiction shall be in effect that prohibits, restrains, limits or imposes conditions on the Transactions, and each no proceeding shall have been instituted, remain pending or, to the knowledge of the parties thereto Parties, be threatened before any such court or administrative tribunal to restrain, prohibit, limit or impose conditions on the Transactions or that would reasonably be expected to result in a Sweetwater Material Adverse Effect or a URC Material Adverse Effect;
(other than First Majestich) the Intercompany Loan Agreement (as defined in the Plan of Arrangement) shall be, in all material respects, in full compliance with their respective obligations thereunderhave been duly executed by URC and CallCo and delivered to the Parties; and
(i) Silvermex the Pre-Closing Sweetwater Reorganization shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderconsummated.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations obligation of the Parties parties hereto to complete the transactions contemplated by this Agreement Agreement, including the Arrangement, the obligation of Pan Am to file the Articles of Arrangement and the obligation of each of Pan Am and Legacy to take such other action as is necessary or desirable to give effect to the Arrangement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermexconditions:
(a) the Arrangement Interim Order shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented granted in person or by proxy thereat in the manner contemplated by Article 2form and substance satisfactory to Pan Am;
(b) the Arrangement Resolution, with or without amendment, shall have been approved at the Silvermex Meeting Meeting, in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order Court shall have determined that the terms and conditions of the Arrangement are procedurally and substantively fair to the Pan Am Shareholders and the Final Order shall each have been obtained granted in form and terms substance satisfactory to each of Silvermex and First Majestic, acting reasonablyPan Am, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonablyPan Am, on appeal or otherwise;
(d) the securities to be issued in the United States pursuant to the Arrangement shall be issued in accordance with and exempt from registration requirements under applicable exemptions from registration under the U.S. Securities Act;
(e) all governmental, court, regulatory, third party and other approvals, consents, expiry of waiting periods, waivers, permits, exemptions, orders and agreements and all amendments and modifications to, and terminations of, agreements, indentures and arrangements considered by Pan Am to be necessary or desirable for the Arrangement to become effective shall have been obtained or received on terms that are satisfactory to Pan Am;
(f) no action will have been instituted and be continuing on the Effective Date for an injunction to restrain, a declaratory judgment in respect of, or damages on account of or relating to the Arrangement and there shall will not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding cease trading or similar order with respect to any securities of any of the parties will have been issued and remain outstanding;
(other than an appeal made in connection g) none of the consents, orders, rulings, approvals or assurances required for the implementation of the Arrangement will contain terms or conditions or require undertakings or security deemed unsatisfactory or unacceptable by Pan Am;
(h) no law, regulation or policy will have been proposed, enacted, promulgated or applied that interferes or is inconsistent with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;Arrangement; and
(ei) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to timesection 6.2 hereof, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and unless such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which condition is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderhereto.
Appears in 1 contract
Sources: Arrangement Agreement
Mutual Conditions Precedent. The respective obligations of the Parties parties hereto to complete the transactions contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic ADSX and Silvermexthe Corporation:
(a) the Arrangement shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders holders of Common Shares who are represented in person or by proxy thereat in at the manner contemplated by Article 2Meeting;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(asection 6.1(a) which may be imposed by the Business Corporations Act or Interim Order and which are satisfactory to each of the Interim OrderCorporation and ADSX, acting reasonably;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex the Corporation and First MajesticADSX, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, such parties on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;; and
(e) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderVII.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties ▇▇▇, Subco and GLC to complete the transactions contemplated by this Agreement shall be Amalgamation are subject to the satisfaction, on or before the Effective Date, satisfaction of the following conditions precedenton or prior to the Effective Date, each of which may only be waived by only with the mutual consent in writing of First Majestic ▇▇▇, Subco and SilvermexGLC:
(a) the Arrangement shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;
(e) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other All consents, waivers, permits, exemptions, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation completion of the Arrangement and the other transactions contemplated hereinAmalgamation, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would could reasonably be expected to have a Material Adverse Effect on First Majestic GLC or Silvermex ▇▇▇ or materially impede the completion of the Amalgamation, shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respectsobtained;
(b) No temporary restraining order, preliminary injunction, permanent injunction or other order preventing the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as consummation of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this AgreementAmalgamation shall have been issued by any federal, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified datestate, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) provincial court having jurisdiction and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Dateremain in effect;
(c) between The approval of the date hereof Acquisition and any related transactions by the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;CSE.
(d) The ▇▇▇ Shares to be issued pursuant to the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action Amalgamation shall have been taken by Silvermexapproved for listing on the CSE, subject to permit normal conditions on the consummation of the ArrangementEffective Date or as soon as practicable thereafter;
(e) holders On the Effective Date, no cease trade order or similar restraining order of more than 5% of any other provincial securities administrator relating to the issued and outstanding Silvermex ▇▇▇ ▇▇▇▇▇▇, the GLC Shares or the Amalco Shares shall not have exercised the Dissent Rights be in respect of the Arrangementeffect;
(f) there There shall not be pending or threatened any suit, action or proceeding by any Governmental Entityentity, in each case before any court or governmental authority, agency or tribunal, domestic or foreign, that has a reasonable significant likelihood of success:
(i) , seeking to restrain or prohibit the consummation of the Plan of Arrangement Amalgamation or any of the other transactions contemplated by this Agreement or seeking to obtain from either of the Parties ▇▇▇, Subco or GLC any damages that are material in relation to Silvermex▇▇▇, Subco and GLC;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunder.
Appears in 1 contract
Sources: Amalgamation Agreement
Mutual Conditions Precedent. The respective obligations of the Parties hereto to complete the transactions Business Combination contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived only by the mutual consent of First Majestic and Silvermexthe Parties:
(a) 12Ex, upon completion of the Arrangement Business Combination, will meet the minimum original listing requirements of the CSE and the CSE shall have been conditionally approved at the Silvermex Meeting by not less than two-thirds listing of the votes cast by 12Ex Shares to be issued in connection with the Silvermex Securityholders who are represented in person or by proxy thereat in Business Combination on the manner contemplated by Article 2CSE following the Business Combination, subject to completion of the Business Combination and completion of the customary listing requirements of the CSE;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedBusiness Combination;
(ec) this Agreement shall not have been terminated pursuant to Article 68;
(d) all Regulatory Approvals and corporate approvals shall have been obtained;
(e) each Party shall not have entered into any transaction or contract which would have a material effect on the financial and operational condition, or the assets of each Party, excluding those transactions or contracts undertaken in the ordinary course of business, without first discussing and obtaining the approval of the other Party;
(f) Silvermex shall have received any required the requisite approval of the TSX to 79North Shareholders of the transactions contemplated hereinAmalgamation shall have been obtained;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise requisite approval of the Replacement Warrants from time to time, 12Ex Shareholders for the Amalgamation shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuanceobtained;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances Financing shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereundercompleted; and
(i) Silvermex all the conditions for the release of the gross proceeds from the Financing from escrow shall have provided to First Majestic, been satisfied or waived. If any of the above conditions shall not have been complied with or waived by the Parties on or before the Effective DateCompletion Deadline or, written resignations effective as of if earlier, the Effective Timedate required for the performance thereof, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic then a Party may not rely on terminate this Agreement in circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of a breach of this Agreement by the Party terminating the Agreement. In the event that the failure to satisfy any one or more of the above conditions precedent as results from a basis for non-compliance material default by it with a Party of its obligations under this Agreement and if the condition such condition(s) precedent would have been satisfied but for such default, such defaulting Party shall not rely on such failure (to satisfy one or more of the above conditions) as a material default by First Majestic in complying basis for its own non-compliance with its obligations hereunderunder this Agreement.
Appears in 1 contract
Sources: Business Combination Agreement
Mutual Conditions Precedent. The respective obligations of the Parties hereto to complete the transactions Business Combination contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived only by the mutual consent of First Majestic and Silvermexthe Parties:
(a) Baden, upon completion of the Arrangement Business Combination, will meet the minimum original listing requirements of the TSXV and the TSXV shall have been conditionally approved at the Silvermex Meeting by not less than two-thirds listing of the votes cast by Post-Consolidation Baden Shares on the Silvermex Securityholders who are represented in person or by proxy thereat in TSXV following the manner contemplated by Article 2Business Combination, subject to completion of the Business Combination and completion of the customary listing requirements of the TSXV;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedBusiness Combination;
(ec) this Agreement shall not have been terminated pursuant to Article 68;
(d) all Regulatory Approvals and corporate approvals shall have been obtained;
(e) the Concurrent Financing shall have been completed no later than September 1, 2022;
(f) Silvermex shall have received any required the approval of the TSX Transaction Resolution by the Baden Shareholders, if required pursuant to the transactions contemplated hereinpolicies of the TSXV;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, NorthStar Approval shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;obtained; and
(h) the issuance requisite approval of the First Majestic Shares and Replacement Warrants will be exempt from Baden Shareholders for the registration requirements creation of the U.S. Securities Act New Preferred Shares, the Common Share Amendment, the adoption of the New Equity Compensation Plan and the issuance of the First Majestic Shares Baden Director and Replacement Warrants Officer and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances Appointments shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of obtained. If any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex above conditions shall not have been obtained complied with or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to waived by the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, Parties on or before the Effective DateCompletion Deadline or, of each of if earlier, the following conditions precedent (each of which is date required for the exclusive benefit of First Majestic and performance thereof, then a Party may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under terminate this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of a breach of this Agreement by the Party terminating the Agreement. In the event that the failure to satisfy any one or more of the above conditions precedent as results from a basis for non-compliance material default by it with a Party of its obligations under this Agreement and if the condition such condition(s) precedent would have been satisfied but for such default, such defaulting Party shall not rely on such failure (to satisfy one or more of the above conditions) as a material default by First Majestic in complying basis for its own non-compliance with its obligations hereunderunder this Agreement.
Appears in 1 contract
Sources: Business Combination Agreement
Mutual Conditions Precedent. The respective obligations of the Parties hereto to complete each step of the transactions Business Combination contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived only by the mutual consent of First Majestic and Silvermexthe Parties:
(a) the Arrangement there shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person no action taken under any applicable Law or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order Government Authority and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedBusiness Combination;
(eb) this Agreement shall not have been terminated pursuant to Article 68;
(c) all Regulatory Approvals (including CSE approvals) and corporate approvals shall have been obtained;
(d) each Party shall not have entered into any transaction or contract which would have a material effect on the financial and operational condition, or the assets of each Party, excluding those transactions or contracts undertaken in the ordinary course of business, without first discussing and obtaining the approval of the other Party;
(e) the MichiCann Shareholder Approval shall have been obtained;
(f) Silvermex the Tidal Shareholder Approval shall have received any required approval of the TSX to the transactions contemplated herein;been obtained; and
(g) Tidal shall have completed the First Majestic Shares issuable (i) pursuant to Tidal Share Consolidation, the Arrangement Tidal Name Change and (ii) upon exercise the Tidal Director Appointments. If any of the Replacement Warrants from time to time, above conditions shall not have been authorized for listing on complied with or waived by the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, Parties on or before the Effective DateCompletion Deadline or, of each of if earlier, the following conditions precedent (each of which is date required for the exclusive benefit of First Majestic and performance thereof, then a Party may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under terminate this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of a breach of this Agreement by the Party terminating the Agreement. In the event that the failure to satisfy any one or more of the above conditions precedent as results from a basis for non-compliance material default by it with a Party of its obligations under this Agreement and if the condition such condition(s) precedent would have been satisfied but for such default, such defaulting Party shall not rely on such failure (to satisfy one or more of the above conditions) as a material default by First Majestic in complying basis for its own non- compliance with its obligations hereunderunder this Agreement.
Appears in 1 contract
Sources: Business Combination Agreement
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement shall be Arrangement are subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived mutual waiver by the mutual consent of First Majestic and Silvermex:
(a) the Arrangement shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;
(e) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfactionParties, on or before the Effective Date, of each of the following conditions precedent (conditions, each of which is are for the exclusive mutual benefit of First Majestic the Parties and which may be waived waived, in whole or in part, by First Majestic):the Purchaser and the Company at any time:
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall Arrangement Resolution will have been duly performed approved by the Company Shareholders at the Company Meeting in accordance with the Interim Order and observed by Silvermex in all material respectsapplicable Laws;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as each of the date of this Agreement Interim Order and as Final Order will have been obtained in form and substance satisfactory to each of the Effective Date as if made Company and the Purchaser, each acting reasonably, and will not have been set aside or modified in any manner unacceptable to either the Company or the Purchaser, each acting reasonably, on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, appeal or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Dateotherwise;
(c) between the date hereof and necessary conditional approvals or equivalent approvals, as the Effective Datecase may be, there shall not of the TSX will have occurredbeen obtained, including in respect of the judgment listing of First Majestic, acting reasonably, a Material Adverse Change to Silvermexthe Share Consideration thereon;
(d) the Silvermex Board issuance of the Share Consideration shall have adopted be exempt from the registration requirements under the U.S. Securities Act pursuant to Section 3(a)(10) thereof and the registration and qualification requirements of all necessary resolutionsapplicable United States securities laws, and all other necessary corporate action the Share Consideration shall have been taken by Silvermex, not be subject to permit resale restrictions in the consummation of United States under the ArrangementU.S. Securities Act;
(e) holders of more than 5% of the issued Key Regulatory Approvals will have been obtained and outstanding Silvermex Shares shall be in full force and effect and not have exercised the Dissent Rights in respect of the Arrangementmodified;
(f) there shall not the Arrangement Filings to be pending or threatened any suit, action or proceeding by any Governmental Entity, sent to the Registrar in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by accordance with this Agreement or seeking to obtain from either of and the Parties any damages that BCBCA are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented form and content satisfactory to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of Company and the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex SubsidiaryPurchaser, each acting reasonably; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;and
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) this Agreement shall not have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain terminated in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it accordance with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderterms.
Appears in 1 contract
Sources: Arrangement Agreement (Thompson Creek Metals Co Inc.)
Mutual Conditions Precedent. The respective obligations of the Parties to complete consummate the transactions contemplated by this Agreement shall be hereby, and in particular the Arrangement, are subject to the satisfaction, on or before the Effective DateDate or such other time specified, of the following conditions precedentconditions, each any of which may only be waived by the mutual written consent of First Majestic and Silvermexsuch Parties without prejudice to their right to rely on any other of such conditions:
(a) the Arrangement Interim Order shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained granted in form and terms substance satisfactory to each of Silvermex and First Majesticthe Parties, acting reasonably, and such order shall not have been set aside or modified in a manner unacceptable to either Partythe Parties, acting reasonably, on appeal or otherwise;
(b) the Arrangement Resolution shall have been passed by the CLM Shareholders at the CLM Meeting in accordance with the Arrangement Provisions, the constating documents of CLM, the Interim Order and the requirements of any applicable regulatory authorities;
(c) the Arrangement and this Agreement, with or without amendment, shall have been approved by the Spinco Shareholder to the extent required by, and in accordance with, the Arrangement Provisions and the constating documents of Spinco;
(d) the Final Order shall have been granted in form and substance satisfactory to the Parties, acting reasonably;
(e) all other consents, orders, regulations and approvals, including regulatory and judicial approvals and orders required or necessary or desirable for the completion of the transactions provided for in this Agreement and the Plan of Arrangement shall have been obtained or received from the persons, authorities or bodies having jurisdiction in the circumstances, each in form acceptable to the Parties;
(f) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;; and
(eg) this Agreement shall not have been terminated pursuant to under Article 6;
(f) Silvermex shall have received any required approval of 7. Except for the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to timeconditions set forth in this §5.1 which, shall have been authorized for listing on the TSX and the NYSEby their nature, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will may not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consentswaived, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated other conditions in this §5.1 may be waived, either in whole or in part, by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of Parties, as the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall case may be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with at its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderdiscretion.
Appears in 1 contract
Sources: Arrangement Agreement
Mutual Conditions Precedent. The respective obligations of the Parties hereto to complete each step of the transactions Business Combination contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived only by the mutual consent of First Majestic and Silvermexthe Parties:
(a) the Arrangement there shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person no action taken under any applicable Law or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order Government Authority and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedBusiness Combination;
(eb) this Agreement shall not have been terminated pursuant to Article 68;
(c) all Regulatory Approvals (including CSE approvals) and corporate approvals shall have been obtained;
(d) each Party shall not have entered into any transaction or contract which would have a material effect on the financial and operational condition, or the assets of each Party, excluding those transactions or contracts undertaken in the ordinary course of business, without first discussing and obtaining the approval of the other Party;
(e) the MichiCann Shareholder Approval shall have been obtained;
(f) Silvermex the Tidal Shareholder Approval shall have received any required approval of the TSX to the transactions contemplated herein;been obtained; and
(g) Tidal shall have completed the First Majestic Shares issuable (i) pursuant to Tidal Share Consolidation, the Arrangement Tidal Name Change and (ii) upon exercise the Tidal Director Appointments. If any of the Replacement Warrants from time to time, above conditions shall not have been authorized for listing on complied with or waived by the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, Parties on or before the Effective DateCompletion Deadline or, of each of if earlier, the following conditions precedent (each of which is date required for the exclusive benefit of First Majestic and performance thereof, then a Party may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under terminate this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of a breach of this Agreement by the Party terminating the Agreement. In the event that the failure to satisfy any one or more of the above conditions precedent as results from a basis for non-compliance material default by it with a Party of its obligations under this Agreement and if the condition such condition(s) precedent would have been satisfied but for such default, such defaulting Party shall not rely on such failure (to satisfy one or more of the above conditions) as a material default by First Majestic in complying basis for its own non-compliance with its obligations hereunderunder this Agreement.
Appears in 1 contract
Sources: Business Combination Agreement
Mutual Conditions Precedent. The respective obligations of the Parties to complete consummate the transactions contemplated by this Agreement shall be hereby, and in particular the Arrangement, are subject to the satisfaction, on or before the Effective DateDate or such other time specified, of the following conditions precedentconditions, each any of which may only be waived by the mutual written consent of First Majestic and Silvermexsuch Parties without prejudice to their right to rely on any other of such conditions:
(a) the Arrangement Resolution shall have been approved passed by the New Age Farm Shareholders at the Silvermex New Age Farm Meeting by not less than two-thirds in accordance with the Arrangement Provisions, the constating documents of New Age Farm, and the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2requirements of any applicable regulatory authorities;
(b) the Arrangement transfer of the NHS Transferred Liabilities to New Age Farm shall have been approved at by the Silvermex Meeting creditors of the NHS Transferred Liabilities to the extent required by, and in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by with, the Business Corporations Act or Arrangement Provisions and the Interim Orderconstating documents of NHS;
(c) the Interim Order Arrangement and this Agreement, with or without amendment, shall have been approved by the NHS Shareholder(s) to the extent required by, and in accordance with, the Arrangement Provisions and the Final Order constating documents of NHS.
(d) the Articles of Arrangement to be filed with the Registrar in accordance with the Arrangement shall each be in form and substance satisfactory to the Parties, acting reasonably;
(e) all other consents, orders, regulations and approvals, including regulatory and judicial approvals and orders required or necessary or desirable for the completion of the transactions provided for in this Agreement and the Plan of Arrangement shall have been obtained or received from the persons, authorities or bodies having jurisdiction in the circumstances, each in form and terms satisfactory acceptable to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwisethe Parties;
(df) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;; and
(eg) this Agreement shall not have been terminated pursuant to under Article 6;
(f) Silvermex shall have received any required approval of 7. Except for the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to timeconditions set forth in this §5.1 which, shall have been authorized for listing on the TSX and the NYSEby their nature, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will may not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consentswaived, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated other conditions in this §5.1 may be waived, either in whole or in part, by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of Parties, as the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall case may be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with at its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderdiscretion.
Appears in 1 contract
Sources: Arrangement Agreement
Mutual Conditions Precedent. The respective obligations of the Parties each Party to complete the transactions contemplated by this Agreement shall be subject to the satisfaction, on at or before the Effective DateTime, of the following conditions precedent, and each of which may only Party shall cause such conditions to be waived by the mutual consent of First Majestic and Silvermexfulfilled insofar as they relate to matters within its control:
(a) the Arrangement Interim Order shall have been approved at the Silvermex Meeting by not less than two-thirds obtained in form and substance satisfactory to each of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2Parties, acting reasonably;
(b) the Arrangement Resolution shall have been approved by the vote of Securityholders at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or requirements of the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms substance satisfactory to each of Silvermex and First Majesticthe Parties, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonablyany of the Parties, on appeal or otherwise;
(d) the number of Tone Resources Shares held by Shareholders that have validly exercised their Dissent Rights in respect of the Arrangement shall not exceed 5% of the number of Tone Resources Shares outstanding on May 18, 2007;
(e) there shall not exist any prohibition under applicable Law against the completion of the Arrangement; and
(f) there shall not be in force any order or decree restraining or enjoining or materially modifying or imposing material conditions on the consummation of the transactions transaction contemplated by under this Agreement or under the Plan of Arrangement, and there shall be no proceeding (other than an appeal made in connection with the Arrangement)proceeding, whether of a judicial or administrative nature or otherwiseotherwise brought by a Governmental Entity, in progress or threatened that relates to or results from the transactions contemplated by under this Agreement that would, if successful, result in an order or ruling that would preclude completion of of, or materially modify or impose material conditions on, the transactions transaction contemplated by under this Agreement or under the Plan of Arrangement in accordance with the terms and conditions hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;
(e) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderthereof.
Appears in 1 contract
Sources: Arrangement Agreement (Us Gold Canadian Acquisition Corp)
Mutual Conditions Precedent. The respective obligations of the Parties hereto to complete the transactions Business Combination contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived only by the mutual consent of First Majestic and Silvermexthe Parties:
(a) I3, upon completion of the Arrangement Business Combination, will meet the minimum original listing requirements of the CSE and the CSE shall have been conditionally approved at the Silvermex Meeting by not less than two-thirds listing of the votes cast by I3 Shares on the Silvermex Securityholders who are represented in person or by proxy thereat in CSE, subject to completion of the manner contemplated by Article 2Business Combination and completion of the customary listing requirements of the CSE;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement Business Combination;
(c) I3 and there Debtco shall be no proceeding have completed the I3 Debt Assignment and the Debtco Amalgamation;
(other than an appeal made in connection with d) I3 shall have completed the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedI3 Name Change;
(e) this Agreement shall not have been terminated pursuant to Article 6section 8.1;
(f) Silvermex all Regulatory Approvals and corporate approvals shall have received any required approval of the TSX to the transactions contemplated hereinbeen obtained;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise requisite approval of the Replacement Warrants from time to time, Influencers Shareholders of the Amalgamation shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuanceobtained;
(h) the issuance number of the First Majestic Influencers Shares and Replacement Warrants will be exempt from the registration requirements in respect of the U.S. Securities Act and the issuance which shareholders of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall Influencers have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, dissented in connection with, or required to permit with the consummation of resolutions authorizing the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there Amalgamation shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5exceed 10% of the number of issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Influencers Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex the CSE Escrow Agreement shall have provided to First Majestic, been executed and delivered. If any of the above conditions shall not have been complied with or waived by the Parties on or before the Effective DateCompletion Deadline or, written resignations effective as of if earlier, the Effective Timedate required for the performance thereof, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic then a Party may not rely on terminate this Agreement in circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of a breach of this Agreement by the Party terminating the Agreement. In the event that the failure to satisfy any one or more of the above conditions precedent as results from a basis for non-compliance material default by it with a Party of its obligations under this Agreement and if the condition such condition(s) precedent would have been satisfied but for such default, such defaulting Party shall not rely on such failure (to satisfy one or more of the above conditions) as a material default by First Majestic in complying basis for its own non- compliance with its obligations hereunderunder this Agreement.
Appears in 1 contract
Sources: Business Combination Agreement
Mutual Conditions Precedent. The respective obligations obligation of the Parties parties hereto to complete the transactions contemplated by this Agreement Agreement, including the Arrangement, and the obligation of each of Pan Am and Legacy to take such other action as is necessary or desirable to give effect to the Arrangement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermexconditions:
(a) the Arrangement Interim Order shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented granted in person or by proxy thereat in the manner contemplated by Article 2form and substance satisfactory to Pan Am;
(b) the Arrangement Resolution, with or without amendment, shall have been approved at the Silvermex Meeting Meeting, in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order Court shall have determined that the terms and conditions of the Arrangement are procedurally and substantively fair to the Pan Am Shareholders and the Final Order shall each have been obtained granted in form and terms substance satisfactory to each of Silvermex and First Majestic, acting reasonablyPan Am, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonablyPan Am, on appeal or otherwise;
(d) the securities to be issued in the United States pursuant to the Arrangement shall be issued in accordance with and exempt from registration requirements under applicable exemptions from registration under the U.S. Securities Act;
(e) all governmental, court, regulatory, third party and other approvals, consents, expiry of waiting periods, waivers, permits, exemptions, orders and agreements and all amendments and modifications to, and terminations of, agreements, indentures and arrangements considered by Pan Am to be necessary or desirable for the Arrangement to become effective shall have been obtained or received on terms that are satisfactory to Pan Am;
(f) no action will have been instituted and be continuing on the Effective Date for an injunction to restrain, a declaratory judgment in respect of, or damages on account of or relating to the Arrangement and there shall will not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding cease trading or similar order with respect to any securities of any of the parties will have been issued and remain outstanding;
(other than an appeal made in connection g) none of the consents, orders, rulings, approvals or assurances required for the implementation of the Arrangement will contain terms or conditions or require undertakings or security deemed unsatisfactory or unacceptable by Pan Am;
(h) no law, regulation or policy will have been proposed, enacted, promulgated or applied that interferes or is inconsistent with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;Arrangement; and
(ei) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to timesection 6.2 hereof, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and unless such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which condition is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderhereto.
Appears in 1 contract
Sources: Arrangement Agreement
Mutual Conditions Precedent. The respective obligations of the Parties parties hereto to complete the transactions contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic EGI on behalf of the EGI Parties and SilvermexVERSUS on behalf of the VERSUS Parties:
(a) the Arrangement shall have been approved at the Silvermex VERSUS Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders holders of VERSUS Shares, VERSUS Options and Compensation Options who are represented in person or by proxy thereat in at the manner contemplated by Article 2VERSUS Meeting, voting together as a single class;
(b) the Arrangement shall have been approved at the Silvermex VERSUS Meeting in accordance with any conditions in addition to those set out in Section 5.1(a7.1(a) which may be imposed by the Business Corporations Act or the Interim OrderOrder and which are satisfactory to each of VERSUS and EGI, acting reasonably;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex VERSUS and First MajesticEGI, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, such parties on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the terms, conditions or effectiveness of the Appropriate Regulatory Approvals which have been obtained; nor shall there be any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the transactions contemplated by this Agreement, which prevents or prohibits the consummation of the transactions contemplated by this Agreement; in the event an injunction or other order shall have been issued, each party agrees to use its commercially reasonable efforts to have such injunction or other order lifted;
(e) this Agreement shall not have been terminated pursuant to Article 6VIII;
(f) Silvermex the Exchangeable Shares issuable pursuant to the Arrangement shall have received any required approval of been listed on the TSX to the transactions contemplated hereinTSE;
(g) the First Majestic filing with Nasdaq of a Notification Form for Listing of Additional Shares with respect to the EGI Common Shares issuable (i) pursuant to the Arrangement Arrangement, upon exchange of the Exchangeable Shares and (ii) upon exercise of the Replacement Warrants from time to timeoptions under the VERSUS Stock Option Plans assumed by EGI, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonablymade; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunder.
Appears in 1 contract
Sources: Merger Agreement (E Trade Group Inc)
Mutual Conditions Precedent. The respective obligations of the Parties parties hereto to complete the transactions contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Closing Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic the RJF Parties and SilvermexGMI and any one or more of which, if not satisfied or waived, will relieve the parties hereto of any obligation under this Agreement, except for obligations pursuant to section 6.8:
(a) the Arrangement shall have been approved at the Silvermex GMI Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders GMI Shareholders who are represented in person or by proxy thereat at the GMI Meeting (each GMI Shareholder being entitled to cast one vote for each GMI Common Share held and one vote for each GMI Preferred Share held, as provided in the manner contemplated by Article 2Interim Order);
(b) the Arrangement shall have been approved at the Silvermex GMI Meeting in accordance with any conditions in addition to those set out in Section 5.1(asubsection 7.1 (a) which may be imposed by the Business Corporations Act or the Interim OrderOrder and which are acceptable to each of GMI and RJF, acting reasonably;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory acceptable to each of Silvermex GMI and First MajesticRJF, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, such parties on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Appropriate Regulatory Approvals which have been obtained;
(e) this Agreement shall not have been terminated pursuant to Article 6;8; and
(f) Silvermex shall have received any required approval the RJF Common Shares issuable upon exchange of the TSX to the transactions contemplated herein;
(g) the First Majestic Exchangeable Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, time shall have been authorized approved for listing on the TSX and the NYSENew York Stock Exchange, subject only to official notice of issuance;
(h) . Neither GMI nor the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as RJF Parties may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic it (in the case of GMI) or by either of the RJF Parties (in the case of the RJF Parties) in complying with its obligations hereunder.
Appears in 1 contract
Sources: Arrangement Agreement (Raymond James Financial Inc)
Mutual Conditions Precedent. 8.01 The respective obligations following conditions in favour of the Parties to complete Vendor and the transactions contemplated by this Agreement shall Purchaser must be subject to the satisfaction, fulfilled on or before the Effective Closing Date, of the following conditions precedent, each of which provided that such date may only be waived extended by the mutual consent agreement of First Majestic each of the Purchaser and Silvermexthe Vendor, and which conditions are inserted for the benefit of each of the Vendor and the Purchaser and may be waived only by both of the Vendor and Purchaser on or before the Closing Date:
(a) on or before the Arrangement Closing Date, the Approval & Vesting Order shall have been approved at obtained, the Silvermex Meeting by not less than two-thirds terms of the votes cast by Approval & Vesting Order shall not differ materially from the Silvermex Securityholders who are represented in person form of Order at Schedule 1.01(e), and such Order shall not have been stayed, reversed, dismissed or by proxy thereat in the manner contemplated by Article 2;subject to appeal; and
(b) as of the Arrangement Closing Date, no order shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order made and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;
(e) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suitmotion, action or proceeding shall be pending, threatened or commenced by any Governmental person, government, Government Entity, regulatory body or agency in each case that has a reasonable likelihood of success:
(i) seeking any jurisdiction which seeks to restrain or prohibit prevent the consummation sale of the Plan of Arrangement Purchased Assets under this Agreement or any of seeks to restrict, prohibit or direct the transactions Vendor not to complete the transaction contemplated by this Agreement or seeking Agreement.
8.02 Unless otherwise agreed to obtain from either of by the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or holdwriting, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have contained in 8.01(a) has not been satisfied but for a material default by First Majestic on or before March 15, 2017 or such later date as the Parties may subsequently agree in complying with its obligations hereunderwriting, or the condition precedent contained in Section 8.01(b) has not been satisfied or waived on the Closing Date, then this Agreement shall automatically terminate without any further action on the part of either Party.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Mutual Conditions Precedent. The respective obligations of the Parties parties hereto to complete the transactions contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic ADOS and SilvermexQOEO:
(a) the Arrangement in this Agreement shall have been approved at the Silvermex QOEO Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders QOEO Shareholders who are represented in person or by proxy thereat in at the manner contemplated by Article 2QOEG Meeting;
(b) the Arrangement ADOS Resolution shall have been approved at the Silvermex ADOS Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by not less than two-thirds of the votes cast by the Business Corporations Act or ADOS Shareholders who are represented at the Interim OrderADOS Meeting;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any final and non-appealable injunction, order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, brought by a Governmental Entity in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;Agreement.
(ed) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(ge) the First Majestic ADGS Common Shares issuable (i) pursuant to be issued in connection with the Arrangement Section in this Agreement and such other ADGS Common Shares to be reserved for issuance in connection with the Arrangement Section in this Agreement (ii) upon exercise of the Replacement Warrants including those underlying ADGS Common Shares to be issued from time to time, time upon the exchange of Exchangeable Shares) shall have been authorized approved for listing on the TSX and OTC Market, such listing to be effective as of the NYSEEffective Time, subject to official the filing of required documentation, notice of issuanceissuance and/or other usual Requirements;
(hf) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances Regulatory Approvals shall have been obtained or satisfied on terms and conditions satisfactory to each of First Majestic ADGS and Silvermex QOEG (but only insofar as it would directly affect QOEG shareholders), acting reasonably, and in connection therewith ADGS shall have regard to the magnitude of the transaction; and
(jg) other than the Regulatory Approvals, all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit permit, the consummation of the Arrangement and the other transactions contemplated hereinArrangement, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic ADGS or Silvermex QOEG, as the case may be, shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic ADGS and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) QOEG; there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
: (i) seeking to prohibit or restrict the acquisition by ADGS or any of its subsidiaries of any QOEG Common Shares, seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties QOEG or ADGS any damages that are material directly or indirectly in relation to Silvermex;
connection with the Agreement, (ii) seeking to prohibit or materially limit the ownership or operation by First Majestic ADGS or any of the First Majestic Material Subsidiaries its subsidiaries of any material portion of the business or assets of Silvermex QOEG or any Silvermex Subsidiary of its subsidiaries or to compel First Majestic ADGS or any of the First Majestic Material Subsidiaries its subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex QOEG or any Silvermex Subsidiary;
of its subsidiaries, (iii) seeking to impose limitations on the ability of First Majestic ADGS or any of its subsidiaries to acquire or hold, or exercise full rights of ownership of of, any Silvermex QOEG Common Shares, including the right to vote the Silvermex QOEG Common Shares purchased by them on all matters properly presented to the shareholders of Silvermex;
QOEG, (iv) seeking to prohibit First Majestic ADGS or any of the First Majestic Material Subsidiaries its subsidiaries from effectively controlling in any material respect the business or operations of Silvermex QOEG or any Silvermex Subsidiary; or
of its subsidiaries or (v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex QOEG or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderADGS.
Appears in 1 contract
Sources: Merger Agreement (Quality Online Education Group Inc.)
Mutual Conditions Precedent. The respective obligations of the Parties Corporations to complete the transactions contemplated by this Agreement Agreement, including the Arrangement and to file articles of arrangement pursuant to Subsection 183(1) of the OBCA to give effect to the Arrangement shall be subject to the satisfaction, on or before the Effective Date, satisfaction of the following conditions precedentconditions, each Subsection 5.l(e) of which may only be waived by any of the mutual consent Corporations in whole or in part without prejudice to the right of First Majestic and Silvermexsuch Corporation to rely on any other of them:
(a) This Agreement and the Arrangement Arrangement, with or without amendment, shall have been approved at the Silvermex Meeting in accordance with the Interlocutory Order and the Arrangement shall have otherwise been approved by not less than two-thirds the requisite majorities of the votes cast shares entitled or required to vote thereon as determined by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2Court;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim The Final Order and the Final MRRS Relieving Order shall each have been obtained in form and terms substance satisfactory to each the Corporations;
(c) All other consents, orders, regulations and approvals, including regulatory and judicial approvals and orders and the consents of Silvermex other securities regulatory authorities under comparable securities legislation of the other provinces of Canada, required or necessary or desirable for the completion of the transactions provided for in this Agreement and First Majestic, acting reasonably, and the Arrangement shall not have been set aside obtained or modified received from the persons, authorities or bodies having jurisdiction in a manner unacceptable to either Party, acting reasonably, on appeal or otherwisethe circumstances;
(d) there There shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;
(e) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% None of the issued and outstanding Silvermex Shares shall not have exercised consents, orders, approvals or assurances contemplated herein or required for the Dissent Rights in respect implementation of the ArrangementArrangement shall contain terms or conditions or require undertakings or security deemed unsatisfactory or unacceptable by any of the parties hereto;
(f) there The number of shares held by dissenting shareholders shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation have exceeded 5% of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex then issued and outstanding ADB Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;and
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) This Agreement shall not have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations terminated under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderArticle Six.
Appears in 1 contract
Sources: Co Operation Agreement (Adb Systems International LTD)
Mutual Conditions Precedent. (1) The respective obligations of the Parties to complete the Arrangement and the other transactions contemplated by this Agreement shall be are subject to the satisfactionfulfillment, on or before the Effective DateTime, of each of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermex:
(a) the Arrangement Interim Order shall have been approved at granted on terms consistent with this Agreement, and shall not have been set aside or materially modified in a manner unacceptable to the Silvermex Meeting by not less than two-thirds of Company or the votes cast by the Silvermex Securityholders who are represented in person Purchaser, each acting reasonably, on appeal or by proxy thereat in the manner contemplated by Article 2otherwise;
(b) the Arrangement Resolution shall have been approved at by the Silvermex Meeting Shareholders and Optionholders in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order (including the Plan of Arrangement) shall each have been obtained in form and granted on terms satisfactory to each of Silvermex and First Majestic, acting reasonablyconsistent with this Agreement, and shall not have been set aside or materially modified in a manner unacceptable to either Partythe Company or the Purchaser, each acting reasonably, on appeal or otherwise;
(d) there the Articles of Arrangement shall not be in force any order or decree restraining or enjoining form and substance consistent with this Agreement, the consummation Plan of Arrangement and the transactions contemplated by this Agreement and there Final Order;
(e) the HSR Approval shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;
(ef) no applicable law shall be in effect that makes the consummation of the Arrangement or any other transactions contemplated herein, illegal or otherwise prohibits or enjoins the Company or the Purchaser from consummating the Arrangement or the other transactions contemplated by this Agreement; and
(g) this Agreement shall not have been terminated pursuant to Article 6;8.
(f2) Silvermex shall have received any required approval The foregoing conditions are for the mutual benefit of the TSX to Company, on the transactions contemplated herein;
(g) one hand, and Purchaser, on the First Majestic Shares issuable (i) pursuant to other hand, and may be waived, in whole or in part, jointly by the Arrangement Company and (ii) upon exercise the Purchaser, at any time. If any of the Replacement Warrants from time to time, foregoing conditions precedent shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance not be complied with or waived by both of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except Parties as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, aforesaid on or before the Effective DateOutside Date then, subject to Section 5.5, either the Company or Purchaser may terminate this Agreement by written notice to the other Party in accordance with the procedures set forth in Article 8 in circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date Purchaser’s breach of this Agreement, in which the event such representations and warranties shall be true and correct in all material respects as of such earlier specified datea proposed termination by Purchaser, or except as affected by transactions contemplated or permitted by the Company’s breach of this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurredAgreement, in the judgment event of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) proposed termination by the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderCompany.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement shall be hereby are subject to the satisfactionfulfillment, on or before the Effective DateTime or such other time specified, of each of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermex:
(a) the Arrangement shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and on terms satisfactory to each of Silvermex and First Majesticthe Parties, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Partythe Parties, acting reasonably, on appeal or otherwise;
(b) the Arrangement Resolution shall have been approved at the SMART Meeting by not less than the Securityholders’ Vote;
(c) the Final Order shall have been obtained in form and on terms satisfactory to each of the Parties, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to the Parties, acting reasonably, on appeal or otherwise;
(d) there the Certificate of Arrangement shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedissued by the Registrar and the Effective Date shall have occurred not later than the Outside Date;
(e) no Governmental Entity having jurisdiction in the circumstances shall have enacted, issued, promulgated, applied for (or advised any of the Parties in writing that it has determined to make such application), enforced or entered any Law (whether temporary, preliminary or permanent) that restrains, enjoins or otherwise prohibits consummation of, or dissolves the Arrangement or the transactions contemplated hereby; and
(f) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval in accordance with its terms. The foregoing conditions precedent are for the mutual benefit of the TSX to Parties and may only be waived, in whole or in part, by the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise mutual consent of the Replacement Warrants from Parties in writing at any time in their sole discretion without prejudice to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance any other rights they may have. If any of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will said conditions shall not be subject to hold periods under the Securities Laws of Canada satisfied or the United States except as may be imposed waived in writing by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, both Parties on or before the Effective Date, of each of the following conditions precedent (each of which is date required for the exclusive benefit of First Majestic their performance and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of provided such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under did not arise from the acts or omissions of the Party wishing to terminate, then a Party may terminate this Agreement if by written notice to the condition precedent would other Party in addition to the other rights or remedies it may have been satisfied but for a material default by First Majestic at law or in complying with its obligations hereunderequity against such other Party.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement and to file the Arrangement Filings in order to give effect to the Arrangement shall be subject to the satisfaction, on or before the Effective Date, satisfaction of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermexconditions:
(a) the Arrangement Resolution shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented Shareholders, in person or by proxy thereat in proxy, at the manner contemplated by Article 2Meeting;
(b) the Final Order approving the Arrangement shall have been approved at obtained from the Silvermex Meeting Court in accordance with any conditions in addition form and substance satisfactory to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or parties to the Interim OrderArrangement Agreement;
(c) the Interim Order Articles of Arrangement, together with a copy of the Plan of Arrangement and the Final Order shall each have been obtained and such other materials as may be required by the Director, in form and terms substance satisfactory to each of Silvermex and First Majesticthe parties to the Arrangement Agreement, acting reasonably, and shall not have been set aside or modified filed with the Director in a manner unacceptable to either Party, acting reasonably, on appeal or otherwiseaccordance with subsection 192(6) of the CBCA;
(d) all necessary consents, orders, rulings, approvals, opinions and assurances, including regulatory, judicial, third party and advisor approvals, opinions and orders, required for the completion of the transactions provided for in the Arrangement Agreement and the Plan of Arrangement shall have been obtained or received;
(e) no action shall have been instituted and be continuing on the Effective Date for an injunction to restrain, a declaratory judgment in respect of, or damages on account of, or relating to, the Arrangement, there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this the Arrangement Agreement and there no cease trading or similar order with respect to any securities of any of the parties to the Arrangement Agreement shall have been issued and remain outstanding;
(f) none of the consents, orders, rulings, decisions, approvals, opinions or assurances required for the implementation of the Arrangement shall contain terms or conditions or require undertakings or security deemed unsatisfactory or unacceptable by any of the parties to the Arrangement Agreement;
(g) no law, regulation or policy shall have been proposed, enacted, promulgated or applied which interferes or is inconsistent with the completion of the Arrangement, including any material change to the income tax laws of Canada or the United States, or any province, state or territory thereof, or which would have a material adverse effect upon Shareholders or the Fund Group if the Arrangement is completed;
(h) the conditional approval of the TSX of the listing of the Fund Units to be issued pursuant to the Arrangement (and upon exchange of the Exchangeable LP Units and Fund Options) shall have been obtained, subject only to the filing of required documents which cannot be filed prior to the Effective Date;
(i) the Pre-Arrangement Transactions shall have been completed;
(j) the board of directors of Cinram shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwisesatisfied, in progress or threatened its sole discretion, that relates to or results from the transactions Post-Arrangement Transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtainedwill occur;
(ek) no Shareholder shall have exercised his, her or its Dissent Rights;
(l) Shareholders who immediately prior to the Effective Time are not resident in Canada for the purposes of the Tax Act (based on reasonable evidence available to the board of directors of Cinram) and who are to receive Fund Units under the Arrangement shall not, immediately following Closing, own in excess of 40% of all then outstanding Fund Units; and
(m) this Agreement shall not have been terminated pursuant to under Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunder.
Appears in 1 contract
Sources: Arrangement Agreement (Cinram International Income Fund)
Mutual Conditions Precedent. The respective obligations of the Parties each of Copper Mountain and CEN to complete the transactions contemplated by this Agreement shall hereby and to file with the Registrar a certified copy of the Final Order to give effect to the Arrangement will be subject to the satisfactionfulfillment, or mutual waiver in writing by each of Copper Mountain and CEN, of each of the following conditions:
(a) on or before August 31,2000:
(i) all orders and exemptions contemplated under Section 2.0 hereof shall have been obtained on terms satisfactory to each of Copper Mountain and CEN, acting reasonably; and
(ii) the form and content of the Circular shall have been settled between Copper Mountain and CEN, acting reasonably and in good faith;
(b) the Interim Order will have been obtained by June 30, 2000 and the Final Order will have been obtained by August 15, 2000, in each case in form and substance satisfactory to Copper Mountain and CEN, acting reasonably;
(c) on or before the Effective Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermex:
(ai) the Arrangement shall CEN Shareholders and the Copper Mountain Shareholders will have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting Special Resolutions in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations requirements of the Company Act or and the Interim Order;
(cii) the Interim Order and the Final Order shall each have been obtained all regulatory approvals which are required in form and terms satisfactory to each of Silvermex and First Majestic, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining connection with the consummation of the transactions contemplated by in this Agreement and there in the Plan of Arrangement shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;
(eiii) the Copper Mountain Shares to be issued pursuant to the Arrangement (including Copper Mountain Shares issuable upon exercise of the Warrants and the CEN Options) will have been accepted for listing on the Exchange, subject only to the filing of such documents as may be required by the Exchange; and
(iv) no legal impediment will exist, whether arising under any Law or by actions of a court, nor will any proceedings be pending before a court other than an appeal of the Final Order) that will have the consequence (or would, if successful, have the consequence) of preventing the Arrangement;
(d) this Agreement shall will not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderSection 10.0.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Baytex Parties to complete the transactions contemplated by this Agreement shall be subject to the fulfilment or satisfaction, on or before the Effective DateDate or such other time specified, of each of the following conditions precedentconditions, each any of which may only be waived collectively by the mutual consent of First Majestic and Silvermexthem without prejudice to their right to rely on any other condition:
(a) the Arrangement Interim Order shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained granted in form and terms substance satisfactory to each of Silvermex and First Majesticthe Baytex Parties, acting reasonably, not later than October 29, 2010 or such later date as the parties hereto may agree and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, such parties on appeal or otherwise;
(b) the Arrangement Resolution shall have been approved by the requisite number of votes cast by the Unitholders at the Meeting in accordance with the Trust Indenture, the Interim Order and any applicable regulatory requirements;
(c) the Final Order shall have been granted in form and substance satisfactory to the Baytex Parties, acting reasonably, not later than December 31, 2010 or such later date as the parties hereto may agree;
(d) there the Articles of Arrangement and all necessary related documents, in form and substance satisfactory to the Baytex Parties, acting reasonably, shall not be have been accepted for filing by the Registrar together with the Final Order in force any order or decree restraining or enjoining the consummation accordance with subsection 193(9) of the transactions contemplated ABCA;
(e) no material action or proceeding shall be pending or threatened by this Agreement any person, company, firm, governmental authority, regulatory body or agency and there shall be no proceeding action taken under any existing applicable law or regulation, nor any statute, rule, regulation or order which is enacted, enforced, promulgated or issued by any court, department, commission, board, regulatory body, government or governmental authority or similar agency, domestic or foreign, that:
(i) makes illegal or otherwise directly or indirectly restrains, enjoins or prohibits the Arrangement or any other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;herein; or
(eii) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval results in a judgment or assessment of the TSX material damages directly or indirectly relating to the transactions contemplated herein;
(f) all necessary material third party and regulatory consents, approvals and authorizations with respect to the transactions contemplated hereby shall have been completed or obtained;
(g) the First Majestic TSX shall have conditionally approved the listing of the New Baytex Shares to be issued or made issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSEArrangement, subject only to official notice the filing of issuancerequired documents which cannot be filed prior to the Effective Date;
(h) the issuance NYSE shall have approved the listing of the First Majestic New Baytex Shares and Replacement Warrants will to be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada issued or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic issuable pursuant to the Securities Laws of any applicable jurisdiction;Arrangement; and
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic the covenants, acts and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, undertakings of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement Baytex Parties to be performed or observed complied with on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) pursuant to the representations and warranties terms of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, duly performed or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereundercomplied with.
Appears in 1 contract
Mutual Conditions Precedent. (1) The respective obligations of the Parties parties hereto to complete the transactions contemplated by this Agreement shall be subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic SSCC, on behalf of the SSCC Parties, and SilvermexSt. Laurent:
(a) the Arrangement shall have been approved at the Silvermex St. Laurent Meeting by not less than two-thirds or such other percentage as set forth in the Interim Order of the votes cast by the Silvermex Securityholders holders of St. Laurent Common Shares who are represented in person or by proxy thereat in at the manner contemplated by Article 2St. Laurent Meeting;
(b) the Arrangement shall have been approved at the Silvermex St. Laurent Meeting in accordance with any conditions in addition to those set out in Section 5.1(a5.1(1)(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and terms satisfactory to each of Silvermex St. Laurent and First MajesticSSCC, acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either Party, acting reasonably, such parties on appeal or otherwise;
(d) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, brought by a Governmental Entity in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Appropriate Regulatory Approvals which have been obtained;
(e) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval of the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental EntityAppropriate Regulatory Approvals, and the expiry of any waiting periods, in connection with, or required to permit permit, the consummation of the Arrangement and the other transactions contemplated hereinArrangement, the failure of which to obtain or the non-expiry of which would constitute a criminal offenseviolation of applicable Law, or would have a Material Adverse Effect on First Majestic SSCC or Silvermex St. Laurent, as the case may be, shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic SSCC and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) St. Laurent; there shall not be pending or threatened any suit, action or proceeding by any Governmental EntityEntity nor shall the parties have been advised by the applicable Governmental Entity that the Government Entity has determined to file a suit, in each case that has a reasonable likelihood of success:
action or proceeding (i) seeking to prohibit or restrict the acquisition by SSCC or 3038727 of any St. Laurent Common Shares, seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties St. Laurent or SSCC any damages that are material in relation to Silvermex;
St. Laurent and its subsidiaries taken as a whole, (ii) seeking to prohibit or materially limit the ownership or operation by First Majestic SSCC or any of the First Majestic Material Subsidiaries its subsidiaries of any material portion of the business or assets of Silvermex St. Laurent or any Silvermex Subsidiary of its subsidiaries or to compel First Majestic SSCC or any of the First Majestic Material Subsidiaries its subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
St. Laurent and of its subsidiaries, taken as a whole, as a result of the Plan of Arrangement, (iii) seeking to impose limitations on the ability of First Majestic SSCC or any of its subsidiaries to acquire or hold, or exercise full rights of ownership of of, any Silvermex St. Laurent Common Shares, including the right to vote the Silvermex St. Laurent Common Shares purchased by it on all matters properly presented to the shareholders of Silvermex;
St. Laurent, (iv) seeking to prohibit First Majestic SSCC or any of the First Majestic Material Subsidiaries 3038727 from effectively controlling in any material respect the business or operations of Silvermex St. Laurent and its subsidiaries or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex St. Laurent or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderSSCC.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties to complete the transactions contemplated by this Agreement shall be Arrangement are subject to the satisfactionfulfillment, on or before the Effective DateTime or such other time specified, of each of the following conditions precedent, each of which may only be waived by the mutual consent of First Majestic and Silvermex:
(a) the Arrangement shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained in form and on terms reasonably satisfactory to each of Silvermex and First Majestic, acting reasonablythe Parties, and shall not have been set aside or modified in a manner unacceptable to either Partythe Parties, acting reasonably, on appeal or otherwise;
(b) the Arrangement Resolution shall have been approved at the Company Meeting by not less than the Common Shareholders’ Vote;
(c) the Final Order shall have been obtained in form and on terms reasonably satisfactory to each of the Parties, and shall not have been set aside or modified in a manner unacceptable to the Parties, acting reasonably, on appeal or otherwise;
(d) there the Certificate of Arrangement shall have been issued by the Director and the Effective Date shall have occurred not be later than the Outside Date;
(e) no Governmental Entity having jurisdiction in force the circumstances shall have enacted, issued, promulgated, applied for (or advised any order or decree restraining or enjoining the consummation of the Parties in writing that it has determined to make such application), enforced or entered any Law (whether temporary, preliminary or permanent) that restrains, enjoins or otherwise prohibits consummation of, or dissolves the Arrangement or the other transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;Agreement; and
(ef) this Agreement shall not have been terminated pursuant to Article 6;
(f) Silvermex shall have received any required approval in accordance with its terms. The foregoing conditions precedent are for the mutual benefit of the TSX to Parties and may only be waived, in whole or in part, by the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise mutual written consent of the Replacement Warrants from Parties in writing at any time in their sole discretion without prejudice to time, shall have been authorized for listing on the TSX and the NYSE, subject to official notice of issuance;
(h) the issuance any other rights they may have. If any of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will said conditions shall not be subject to hold periods under the Securities Laws of Canada satisfied or the United States except as may be imposed waived in writing by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consents, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, Parties on or before the Effective Date, of each of the following conditions precedent (each of which is date required for the exclusive benefit of First Majestic their performance and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of provided such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with its obligations under did not arise from the acts or omissions of the Party wishing to terminate, then a Party may terminate this Agreement if by written notice to the condition precedent would other Parties in addition to the other rights or remedies it may have been satisfied but for a material default by First Majestic at law or in complying with its obligations hereunderequity against such other Parties.
Appears in 1 contract
Mutual Conditions Precedent. The respective obligations of the Parties to complete consummate the transactions contemplated by this Agreement shall be hereby, and in particular the Arrangement, are subject to the satisfaction, on or before the Effective DateDate or such other time specified, of the following conditions precedentconditions, each any of which may only be waived by the mutual written consent of First Majestic and Silvermexsuch Parties without prejudice to their right to rely on any other of such conditions:
(a) the Arrangement Interim Order shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained granted in form and terms substance satisfactory to each of Silvermex and First Majesticthe Parties, acting reasonably, and such order shall not have been set aside or modified in a manner unacceptable to either Partythe Parties, acting reasonably, on appeal or otherwise;
(b) the Arrangement Resolution shall have been passed by the Captiva Shareholders at the Captiva Meeting in accordance with the Arrangement Provisions, the constating documents of Captiva, the Interim Order and the requirements of any applicable regulatory authorities;
(c) the Arrangement and this Agreement, with or without amendment, shall have been approved by the Spinco Shareholder(s) to the extent required by, and in accordance with, the Arrangement Provisions and the constating documents of Spinco;
(d) the Final Order shall have been granted in form and substance satisfactory to the Parties, acting reasonably;
(e) all other consents, orders, regulations and approvals, including regulatory and judicial approvals and orders required or necessary or desirable for the completion of the transactions provided for in this Agreement and the Plan of Arrangement shall have been obtained or received from the persons, authorities or bodies having jurisdiction in the circumstances, each in form acceptable to the Parties;
(f) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;
(eg) no more than 0.5% of the Captiva Shareholders shall have exercised dissent rights; and
(h) this Agreement shall not have been terminated pursuant to under Article 6;
(f) Silvermex shall have received any required approval of 7. Except for the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to timeconditions set forth in this §5.1 which, shall have been authorized for listing on the TSX and the NYSEby their nature, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will may not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consentswaived, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated other conditions in this §5.1 may be waived, either in whole or in part, by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of Parties, as the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall case may be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with at its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderdiscretion.
Appears in 1 contract
Sources: Arrangement Agreement
Mutual Conditions Precedent. The respective obligations of the Parties to complete consummate the transactions contemplated by this Agreement shall be hereby, and in particular the Arrangement, are subject to the satisfaction, on or before the Effective DateDate or such other time specified, of the following conditions precedentconditions, each any of which may only be waived by the mutual written consent of First Majestic and Silvermexsuch Parties without prejudice to their right to rely on any other of such conditions:
(a) the Arrangement Interim Order shall have been approved at the Silvermex Meeting by not less than two-thirds of the votes cast by the Silvermex Securityholders who are represented in person or by proxy thereat in the manner contemplated by Article 2;
(b) the Arrangement shall have been approved at the Silvermex Meeting in accordance with any conditions in addition to those set out in Section 5.1(a) which may be imposed by the Business Corporations Act or the Interim Order;
(c) the Interim Order and the Final Order shall each have been obtained granted in form and terms substance satisfactory to each of Silvermex and First Majesticthe Parties, acting reasonably, and such order shall not have been set aside or modified in a manner unacceptable to either Partythe Parties, acting reasonably, on appeal or otherwise;
(b) the Arrangement Resolution shall have been passed by the PUF Shareholders at the PUF Meeting in accordance with the Arrangement Provisions, the constating documents of PUF, the Interim Order and the requirements of any applicable regulatory authorities;
(c) the Arrangement and this Agreement, with or without amendment, shall have been approved by the Natures Hemp Shareholder to the extent required by, and in accordance with, the Arrangement Provisions and the constating documents of Natures Hemp;
(d) the Final Order shall have been granted in form and substance satisfactory to the Parties, acting reasonably;
(e) all other consents, orders, regulations and approvals, including regulatory and judicial approvals and orders required or necessary or desirable for the completion of the transactions provided for in this Agreement and the Plan of Arrangement shall have been obtained or received from the persons, authorities or bodies having jurisdiction in the circumstances, each in form acceptable to the Parties;
(f) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding (other than an appeal made in connection with the Arrangement), of a judicial or administrative nature or otherwise, in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms hereof or would otherwise be inconsistent with the Regulatory Approvals which have been obtained;; and
(eg) this Agreement shall not have been terminated pursuant to under Article 6;
(f) Silvermex shall have received any required approval of 7. Except for the TSX to the transactions contemplated herein;
(g) the First Majestic Shares issuable (i) pursuant to the Arrangement and (ii) upon exercise of the Replacement Warrants from time to timeconditions set forth in this §5.1 which, shall have been authorized for listing on the TSX and the NYSEby their nature, subject to official notice of issuance;
(h) the issuance of the First Majestic Shares and Replacement Warrants will be exempt from the registration requirements of the U.S. Securities Act and the issuance of the First Majestic Shares and Replacement Warrants and underlying securities will be exempt from the prospectus requirements of applicable Securities Laws in each of the Provinces of Canada in which holders of Silvermex securities are resident; and such First Majestic securities will may not be subject to hold periods under the Securities Laws of Canada or the United States except as may be imposed by Rule 144 under the U.S. Securities Act with respect to affiliates or except as disclosed in the Silvermex Circular or except by reason of the existence of any controlling interest in First Majestic pursuant to the Securities Laws of any applicable jurisdiction;
(i) all Antitrust Clearances shall have been obtained on terms and conditions satisfactory to each of First Majestic and Silvermex acting reasonably; and
(j) all other consentswaived, waivers, permits, orders and approvals of any Governmental Entity, and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Arrangement and the other transactions contemplated herein, the failure of which to obtain or the non-expiry of which would constitute a criminal offense, or would have a Material Adverse Effect on First Majestic or Silvermex shall have been obtained or received on terms that will not have a Material Adverse Effect on First Majestic and/or Silvermex. 5.2 Additional Conditions Precedent to the Obligations of First Majestic. The obligations of First Majestic to complete the transactions contemplated by this Agreement shall also be subject to the satisfaction, on or before the Effective Date, of each of the following conditions precedent (each of which is for the exclusive benefit of First Majestic and may be waived by First Majestic):
(a) all covenants and agreements of Silvermex under this Agreement to be performed or observed on or before the Effective Date shall have been duly performed and observed by Silvermex in all material respects;
(b) the representations and warranties of Silvermex contained in this Agreement shall be true and correct in all material respects (it being understood that, for the purposes of determining the accuracy of such representations and warranties, all “Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) as of the date of this Agreement and as of the Effective Date as if made on and as of such date (except to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement, in which event such representations and warranties shall be true and correct in all material respects as of such earlier specified date, or except as affected by transactions contemplated or permitted by this Agreement or otherwise consented to by First Majestic) and First Majestic shall have received a certificate of Silvermex addressed to First Majestic and dated the Effective Date, signed on behalf of Silvermex by two directors or senior executive officers of Silvermex, confirming the same as at the Effective Date;
(c) between the date hereof and the Effective Date, there shall not have occurred, in the judgment of First Majestic, acting reasonably, a Material Adverse Change to Silvermex;
(d) the Silvermex Board shall have adopted all necessary resolutions, and all other necessary corporate action shall have been taken by Silvermex, to permit the consummation of the Arrangement;
(e) holders of more than 5% of the issued and outstanding Silvermex Shares shall not have exercised the Dissent Rights in respect of the Arrangement;
(f) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success:
(i) seeking to restrain or prohibit the consummation of the Plan of Arrangement or any of the transactions contemplated other conditions in this §5.1 may be waived, either in whole or in part, by this Agreement or seeking to obtain from either of the Parties any damages that are material in relation to Silvermex;
(ii) seeking to prohibit or materially limit the ownership or operation by First Majestic or any of the First Majestic Material Subsidiaries of any material portion of Parties, as the business or assets of Silvermex or any Silvermex Subsidiary or to compel First Majestic or any of the First Majestic Material Subsidiaries to dispose of or hold separate any material portion of the business or assets of Silvermex or any Silvermex Subsidiary;
(iii) seeking to impose limitations on the ability of First Majestic to acquire or hold, or exercise full rights of ownership of any Silvermex Shares, including the right to vote the Silvermex Shares on all matters properly presented to the shareholders of Silvermex;
(iv) seeking to prohibit First Majestic or any of the First Majestic Material Subsidiaries from effectively controlling in any material respect the business or operations of Silvermex or any Silvermex Subsidiary; or
(v) which otherwise is reasonably likely to have a Material Adverse Effect on Silvermex or First Majestic;
(g) all consents, approvals, authorizations and waivers of any Persons (other than Governmental Entities) which are required, necessary or desirable for the completion of the Arrangement and other transactions contemplated hereby (including all consents, approvals, authorizations and waivers required under the Material Agreements) shall have been obtained or received on terms which are acceptable to First Majestic, acting reasonably;
(h) each of the Lock-up Agreements shall be and remain in full force and effect, unamended, and each of the parties thereto (other than First Majestic) shall case may be, in all material respects, in full compliance with their respective obligations thereunder; and
(i) Silvermex shall have provided to First Majestic, on or before the Effective Date, written resignations effective as of the Effective Time, from all directors and officers of Silvermex and the Silvermex Subsidiaries. First Majestic may not rely on the failure to satisfy any of the above conditions precedent as a basis for non-compliance by it with at its obligations under this Agreement if the condition precedent would have been satisfied but for a material default by First Majestic in complying with its obligations hereunderdiscretion.
Appears in 1 contract
Sources: Arrangement Agreement