0000921895-12-001827.txt : 20120907 0000921895-12-001827.hdr.sgml : 20120907 20120907162350 ACCESSION NUMBER: 0000921895-12-001827 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20120907 DATE AS OF CHANGE: 20120907 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Eberwein Jeffrey E. CENTRAL INDEX KEY: 0001548312 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: 124 EAST FOURTH STREET CITY: TULSA STATE: OK ZIP: 74103 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MAG SILVER CORP CENTRAL INDEX KEY: 0001230992 STANDARD INDUSTRIAL CLASSIFICATION: GOLD & SILVER ORES [1040] IRS NUMBER: 000000000 STATE OF INCORPORATION: A1 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-79554 FILM NUMBER: 121080321 BUSINESS ADDRESS: STREET 1: #770 - 800 WEST PENDER STREET CITY: VANCOUVER STATE: A1 ZIP: V6C 2V6 BUSINESS PHONE: 604-630-1399 MAIL ADDRESS: STREET 1: #770 - 800 WEST PENDER STREET CITY: VANCOUVER STATE: A1 ZIP: V6C 2V6 SC 13D/A 1 sc13da208911002_09052012.htm sc13da208911002_09052012.htm
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 13D
(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
§ 240.13d-2(a)

(Amendment No. 2)1

MAG Silver Corp.
(Name of Issuer)

Common Shares, without par value
(Title of Class of Securities)

55903Q104
(CUSIP Number)
 
MASON HILL ADVISORS LLC
c/o Roger E. Anscher
Chief Operating Officer
623 Fifth Avenue, 27th Floor
 New York, NY 10022
(646) 833-2788

STEVE WOLOSKY, ESQ.
OLSHAN FROME WOLOSKY LLP
Park Avenue Tower
65 East 55th Street
New York, New York 10022
(212) 451-2300
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

September 5, 2012
(Date of Event Which Requires Filing of This Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ¨.

Note:  Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits.  See § 240.13d-7 for other parties to whom copies are to be sent.


_______________
1              The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
 
 
 
 
CUSIP NO. 55903Q104
 
1
NAME OF REPORTING PERSON
 
JEFFREY E. EBERWEIN
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) x
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
PF
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
200,000
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
200,000
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENFICIALLY OWNED BY EACH REPROTING PERSON
 
200,000
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
Less than 1%
14
TYPE OF REPORTING PERSON
 
IN

 
2
 
CUSIP NO. 55903Q104
 
1
NAME OF REPORTING PERSON
 
CHARLES M. GILLMAN
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) x
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
- 0 -
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
- 0 -
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENFICIALLY OWNED BY EACH REPROTING PERSON
 
- 0 -
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
0%
14
TYPE OF REPORTING PERSON
 
IN

 
3
 
CUSIP NO. 55903Q104
 
1
NAME OF REPORTING PERSON
 
MASON HILL PARTNERS, LP
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) x
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
- 0 -
8
SHARED VOTING POWER
 
493,800
9
SOLE DISPOSITIVE POWER
 
- 0 -
10
SHARED DISPOSITIVE POWER
 
493,800
11
AGGREGATE AMOUNT BENFICIALLY OWNED BY EACH REPROTING PERSON
 
493,800
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
Less than 1%
14
TYPE OF REPORTING PERSON
 
PN

 
4
 
CUSIP NO. 55903Q104
 
1
NAME OF REPORTING PERSON
 
EQUINOX PARTNERS, L.P.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) x
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
- 0 -
8
SHARED VOTING POWER
 
4,946,510
9
SOLE DISPOSITIVE POWER
 
- 0 -
10
SHARED DISPOSITIVE POWER
 
4,946,510
11
AGGREGATE AMOUNT BENFICIALLY OWNED BY EACH REPROTING PERSON
 
4,946,510
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
8.3%
14
TYPE OF REPORTING PERSON
 
PN

 
5
 
CUSIP NO. 55903Q104
 
1
NAME OF REPORTING PERSON
 
MASON HILL ADVISORS LLC
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) x
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
AF
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
- 0 -
8
SHARED VOTING POWER
 
5,455,310
9
SOLE DISPOSITIVE POWER
 
- 0 -
10
SHARED DISPOSITIVE POWER
 
5,455,310
11
AGGREGATE AMOUNT BENFICIALLY OWNED BY EACH REPROTING PERSON
 
5,455,310
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
9.1%
14
TYPE OF REPORTING PERSON
 
IA

 
6
 
CUSIP NO. 55903Q104
 
1
NAME OF REPORTING PERSON
 
EQUINOX ASSET MANAGEMENT LLC
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) x
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
AF
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
- 0 -
8
SHARED VOTING POWER
 
5,440,310
9
SOLE DISPOSITIVE POWER
 
- 0 -
10
SHARED DISPOSITIVE POWER
 
5,440,310
11
AGGREGATE AMOUNT BENFICIALLY OWNED BY EACH REPROTING PERSON
 
5,440,310
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
9.1%
14
TYPE OF REPORTING PERSON
 
HC, OO

 
7
 
CUSIP NO. 55903Q104
 
1
NAME OF REPORTING PERSON
 
EQUINOX ILLIQUID FUND, LP
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) x
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
- 0 -
8
SHARED VOTING POWER
 
15,000
9
SOLE DISPOSITIVE POWER
 
- 0 -
10
SHARED DISPOSITIVE POWER
 
15,000
11
AGGREGATE AMOUNT BENFICIALLY OWNED BY EACH REPROTING PERSON
 
15,000
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
Less than 1%
14
TYPE OF REPORTING PERSON
 
PN

 
8
 
CUSIP NO. 55903Q104
 
1
NAME OF REPORTING PERSON
 
EQUINOX ILLIQUID GENERAL PARTNER, LP
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) x
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
AF
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
- 0 -
8
SHARED VOTING POWER
 
15,000
9
SOLE DISPOSITIVE POWER
 
- 0 -
10
SHARED DISPOSITIVE POWER
 
15,000
11
AGGREGATE AMOUNT BENFICIALLY OWNED BY EACH REPROTING PERSON
 
15,000
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
Less than 1%
14
TYPE OF REPORTING PERSON
 
PN

 
9
 
CUSIP NO. 55903Q104
 
1
NAME OF REPORTING PERSON
 
SEAN M. FIELER
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) x
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
AF
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
- 0 -
8
SHARED VOTING POWER
 
5,455,310
9
SOLE DISPOSITIVE POWER
 
- 0 -
10
SHARED DISPOSITIVE POWER
 
5,455,310
11
AGGREGATE AMOUNT BENFICIALLY OWNED BY EACH REPROTING PERSON
 
5,455,310
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
9.1%
14
TYPE OF REPORTING PERSON
 
IN

 
10
 
CUSIP NO. 55903Q104
 
1
NAME OF REPORTING PERSON
 
CCM OPPORTUNISTIC PARTNERS, LP
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) x
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
TEXAS
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
42,453
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
42,453
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENFICIALLY OWNED BY EACH REPROTING PERSON
 
42,453
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
Less than 1%
14
TYPE OF REPORTING PERSON
 
PN

 
11
 
CUSIP NO. 55903Q104
 
1
NAME OF REPORTING PERSON
 
CCM OPPORTUNISTIC ADVISORS, LLC
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) x
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
AF
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
TEXAS
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
42,453
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
42,453
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENFICIALLY OWNED BY EACH REPROTING PERSON
 
42,453
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
Less than 1%
14
TYPE OF REPORTING PERSON
 
IA

 
12
 
CUSIP NO. 55903Q104
 
1
NAME OF REPORTING PERSON
 
ALFRED JOHN KNAPP, JR.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) x
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
AF, PF
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
176,503
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
176,503
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENFICIALLY OWNED BY EACH REPROTING PERSON
 
176,503
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
Less than 1%
14
TYPE OF REPORTING PERSON
 
IN

 
13
 
CUSIP NO. 55903Q104
 
The following constitutes Amendment No. 2 to the Schedule 13D filed by the undersigned (“Amendment No. 2”).  This Amendment No. 2 amends the Schedule 13D as specifically set forth herein.
 
Item 2.
Identity and Background.
 
Item 2 is hereby amended to add the following:
 
In connection with the Settlement Agreement defined and described in Item 4 below, the Issuer agreed to nominate Peter Barnes and Richard Clark, director nominees of MISV, to the Board of Directors of the Issuer (the “Board”).  Accordingly, Jeffrey E. Eberwein, Charles M. Gillman, CCM Opportunistic Partners, LP, CCM Opportunistic Advisors, LLC and Alfred John Knapp, Jr. are no longer members of MISV and shall cease to be Reporting Persons immediately after the filing of this Amendment No. 2.  The remaining Reporting Persons will continue filing as a group, statements on Schedule 13D with respect to their beneficial ownership of securities of the Issuer to the extent required by applicable law.  Each of the remaining Reporting Persons is party to the Joint Filing Agreement, as further described in Item 6.
 
Item 3.
Source and Amount of Funds or Other Consideration.
 
Item 3 is hereby amended and restated to read as follows:
 
The shares of Common Stock beneficially owned by Mr. Eberwein were purchased with personal funds in open market purchases, except as set forth in Schedule A, and have an aggregate purchase price of $1,789,971, including brokerage commissions.
 
The shares of Common Stock purchased by each of Mason Hill Partners, Equinox Partners and Illiquid were purchased with the working capital of such funds (which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business) in open market purchases, except as set forth in Schedule A.  The aggregate purchase price of the 5,455,310 shares of Common Stock beneficially owned in the aggregate by Mason Hill Partners, Equinox Partners and Illiquid is approximately $41,509,002, including brokerage commissions.
 
The shares of Common Stock purchased by CCM were purchased with working capital (which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business) in open market purchases.  The aggregate purchase price of the 42,453 shares of Common Stock beneficially owned by CCM is approximately $432,780, including brokerage commissions.
 
The shares of Common Stock beneficially owned by Mr. Knapp were purchased with personal funds in open market purchases and have an aggregate purchase price of $1,141,314, including brokerage commissions.
 
Item 4.
Purpose of Transaction.
 
Item 4 is hereby amended to add the following:
 
On September 5, 2012, the MISV Group (as defined in the Settlement Agreement) and the Issuer entered into a Settlement Agreement. The following description of the Settlement Agreement is qualified in its entirety by reference to the Settlement Agreement, which is attached as exhibit 99.1 hereto and is incorporated herein by reference.
 
 
14
 
CUSIP NO. 55903Q104
 
Pursuant to the terms of the Settlement Agreement, the Issuer agreed: (i) to nominate and solicit proxies for a slate of nine (9) nominees to the Board at the 2012 annual general and special meeting of shareholders of the Issuer to be held on October 5, 2012 (the “2012 Annual Meeting”), which slate shall include Peter Barnes and Richard Clark (the “MISV Nominees”) and seven existing members of the Board, each with a term expiring at the Issuer’s 2013 annual meeting of shareholders (the “2013 Annual Meeting”); (ii) to nominate and solicit proxies for a slate of not more than nine (9) nominees to the Board at the 2013 Annual Meeting, which slate shall include the MISV Nominees or any replacement nominees appointed in accordance with the provisions of the Settlement Agreement; and (iii) that if either of the MISV Nominees is unable to serve, resigns or is removed prior to the 2013 Annual Meeting or is unable or unwilling to continue as a director of the Issuer following the 2013 Annual Meeting and at such time Mason Hill, EAM, Equinox Partners, Mason Hill Partners, Illiquid GP, Illiquid and Mr. Fieler (together, the “Mason Hill Entities”) beneficially own, in the aggregate, at least 70% of the shares of Common Stock they owned collectively as of the date of the Settlement Agreement, then the Mason Hill Entities will be entitled to nominate a substitute individual acceptable to the Board, and if the Board, acting reasonably, does not accept such a substitute individual, the Mason Hill Entities will have the right to recommend additional substitute individual(s) for consideration by the Board, each to be appointed to the Board no later than five (5) business days after Board acceptance.
 
The Issuer further agreed that: (i) the directors of the Board shall remain unchanged prior to the 2012 Annual Meeting; (ii) if the MISV Group has supplied the Issuer with certain information regarding the MISV Nominees by September 7, 2012, the 2012 Annual Meeting shall not be adjourned or postponed, unless the Board acting in good faith and in the exercise of its fiduciary duty, determines that such adjournment or postponement is reasonably necessary and obtains the prior written consent of the MISV Group, which consent shall not be unreasonably withheld or delayed; (iii) the only matters presented by the Issuer for consideration at the 2012 Annual Meeting shall be the election of directors, the appointment of the Issuer’s independent registered public accounting firm and the approval of the advance notice policy adopted on August 23, 2012; and (iv) the size of the Board shall not be increased to more than nine (9) directors prior to the termination of the Settlement Agreement.
 
Pursuant to the terms of the Settlement Agreement, the MISV Group agreed that all of the members of the MISV Group and their respective Affiliates (as that term is defined in the Settlement Agreement) shall: (i) immediately cease soliciting proxies from, and shall not otherwise influence the conduct of or voting by the shareholders of the Issuer in connection with the 2012 Annual Meeting; (ii) vote all voting securities they are entitled to vote at the 2012 Annual Meeting (other than the shares of Common Stock issued to members of the MISV Group pursuant to the private placement completed by the Issuer on September 5, 2012) in favour of the election of each of the nominees to the Board proposed by management for election in accordance with the provisions of the Settlement Agreement at the 2012 Annual Meeting and in favour of approval of the advance notice policy adopted on August 23, 2012; (iii) vote all voting securities they are entitled to vote at the 2013 Annual Meeting (other than the shares of Common Stock issued to members of the MISV Group pursuant to the private placement completed by the Issuer on September 5, 2012) in favour of the election of each of the nominees to the Board proposed by management for election in accordance with the provisions of the Settlement Agreement as well as the renewal of the Issuer’s Shareholder Rights Plan in its current form at the 2013 Annual Meeting; and (iv) otherwise take any and all steps to required to vote all the voting securities of the Issuer beneficially owned by them in favour of the election of the nominees to the Board proposed by management for each of the 2012 Annual Meeting and the 2013 Annual Meeting.
 
In addition, the MISV Group agreed, from the date of the Settlement Agreement through the conclusion of the 2013 Annual Meeting, that neither the members of the MISV Group nor any of their respective Affiliates, directors, officers, employees, agents or other persons acting on their behalf, directly or indirectly, will do any of the following, without the prior written consent of the Issuer: (i) solicit proxies, or engage in, participate in, or in any way initiate, directly or indirectly, any solicitation of shareholders of the Issuer to vote any voting securities of the Issuer on any matter, except as expressly provided in the Settlement Agreement; (ii) the Mason Hill Entities will not acquire or agree to acquire, or make any proposal to acquire more than 15% of the then-outstanding shares of Common Stock or form a group or otherwise work jointly or in concert with any person so that their aggregate beneficial ownership together with such person would exceed 15% of the then-outstanding shares of Common Stock; (iii) deposit any shares of the Issuer in any voting trust or subject any shares of the Issuer to any arrangement or agreement with respect to the voting of any such shares, except as contemplated in the Settlement Agreement; (iv) seek, alone or in concert with others, to requisition a meeting of shareholders of the Issuer, to obtain representation on, or nominate or propose the nomination of any candidate for election to, the Board, except as expressly set forth in the Settlement Agreement, or to effect the removal of any member of the Board or otherwise alter the composition of the Board; (v) submit any shareholder proposal pursuant to Division 7 of the Business Corporations Act (British Columbia); or (vi) advise, assist or encourage or negotiate with any other person to take any action inconsistent with the foregoing.
 
 
15
 
CUSIP NO. 55903Q104
 
On September 5, 2012, the Issuer and the MISV Group jointly issued a mutually agreeable press release to announce they have reached a Settlement Agreement.
 
Item 5.
Interest in Securities of the Issuer.
 
Item 5(a) is hereby amended and restated to read as follows:
 
(a)           The aggregate percentage of shares of Common Stock reported owned by each Reporting Person is based upon 59,753,034 shares of Common Stock outstanding as of September 5, 2012, which is the total number of shares of Common Stock outstanding as provided privately by the Issuer to the Reporting Persons.
 
As of the close of business on September 5, 2012, Mr. Eberwein beneficially owned 200,000 shares of Common Stock, constituting less than 1% of the shares of Common Stock outstanding.
 
As of the close of business on September 5, 2012, Mr. Gillman did not beneficially own any shares of Common Stock.
 
As of the close of business on September 5, 2012, Mason Hill Partners beneficially owned 493,800 shares of Common Stock, constituting less than 1% of the shares of Common Stock outstanding.  As of the close of business on September 5, 2012, Equinox Partners beneficially owned 4,946,510 shares of Common Stock, constituting approximately 8.3% of the shares of Common Stock outstanding.  EAM, as the sole general partner of each of Mason Hill Partners and Equinox Partners, may be deemed the beneficial owner of the 5,440,310 shares of Common Stock owned in the aggregate by Mason Hill Partners and Equinox Partners.  As of the close of business on September 5, 2012, Illiquid beneficially owned 15,000 shares of Common Stock, constituting less than 1% of the shares of Common Stock outstanding.  Illiquid GP, as the sole general partner of Illiquid, may be deemed the beneficial owner of the 15,000 shares of Common Stock owned by Illiquid.  Mason Hill, as the investment advisor of each of Mason Hill Partners, Equinox Partners and Illiquid, may be deemed the beneficial owner of the 5,455,310 shares of Common Stock owned in the aggregate by Mason Hill Partners, Equinox Partners and Illiquid.  Mr. Fieler, as the owner of a controlling interest in Mason Hill and the managing member of each of Mason Hill and EAM, may be deemed the beneficial owner of the 5,455,310 shares of Common Stock owned in the aggregate by Mason Hill Partners, Equinox Partners and Illiquid.
 
 
16
 
CUSIP NO. 55903Q104
 
As of the close of business on September 5, 2012, CCM beneficially owned 42,453 shares of Common Stock, constituting less than 1% of the shares of Common Stock outstanding.  CCM Advisors, as the investment manager of CCM, may be deemed the beneficial owner of the 42,453 shares of Common Stock owned by CCM.  Mr. Knapp, as the manager of CCM Advisors, may be deemed the beneficial owner of the 42,453 shares of Common Stock owned by CCM in addition to the 134,050 shares of Common Stock owned by him individually.
 
An aggregate of 5,831,813 shares of Common Stock, constituting approximately 9.76% of the shares of Common Stock outstanding, are reported in this Schedule 13D.
 
Item 5(c) is hereby amended and restated to read as follows:
 
(c)           Schedule A annexed hereto lists all transactions in securities of the Issuer by the Reporting Persons during the past 60 days.
 
Item 6.
Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.
 
Item 6 is hereby amended to add the following:
 
On August 22, 2012, Mr. Eberwein subscribed for 100,000 shares of Common Stock at a per share price of C$9.40 in a private placement offering conducted by the Issuer that closed on September 5, 2012.
 
On August 22, 2012, Equinox Partners subscribed for 248,710 shares of Common Stock at a per share price of C$9.40 in a private placement offering conducted by the Issuer that closed on September 5, 2012.
 
On September 5, 2012, the MISV Group and the Issuer entered into a Settlement Agreement defined and described in Item 4 above and attached as Exhibit 99.1 hereto.
 
On September 7, 2012, the Reporting Persons entered into a Joint Filing Agreement in which the Reporting Persons agreed to the joint filing on behalf of each of them of statements on Schedule 13D with respect to the securities of the Issuer to the extent required by applicable law.  The Joint Filing Agreement is attached hereto as Exhibit 99.2 and is incorporated herein by reference.
 
Item 7.
Material to be Filed as Exhibits.
 
Item 7 is hereby amended to add the following exhibit:
 
 
99.1
Settlement Agreement by and among MAG Silver Corp., Jeffrey E. Eberwein, Charles M. Gillman, Mason Hill Partners, LP, Equinox Partners, L.P., Mason Hill Advisors LLC, Equinox Asset Management LLC, Equinox Illiquid Fund, LP, Equinox Illiquid General Partner, LP, Sean M. Fieler, CCM Opportunistic Partners, LP, CCM Opportunistic Advisors, LLC and Alfred John Knapp, Jr. dated September 5, 2012.
 
 
99.2
Joint Filing Agreement by and among Mason Hill Partners, LP, Equinox Partners, L.P., Mason Hill Advisors LLC, Equinox Asset Management LLC, Equinox Illiquid Fund, LP, Equinox Illiquid General Partner, LP and Sean M. Fieler dated September 7, 2012.
 
 
17
 
CUSIP NO. 55903Q104
 
SIGNATURES
 
After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
 
Dated:  September 7, 2012
 
 
/s/ Jeffrey Eberwein
 
JEFFREY EBERWEIN


 
/s/ Charles M. Gillman
 
CHARLES M. GILLMAN


 
MASON HILL ADVISORS LLC
   
 
By:
/s/ Sean M. Fieler
   
Name:
Sean M. Fieler
   
Title:
Manager


 
EQUINOX ASSET MANAGEMENT LLC
   
 
By:
/s/ Sean M. Fieler
   
Name:
Sean M. Fieler
   
Title:
Manager


 
EQUINOX PARTNERS, L.P.
   
 
By:
Equinox Asset Management LLC,
   
General Partner
     
 
By:
/s/ Sean M. Fieler
   
Name:
Sean M. Fieler
   
Title:
Manager


 
MASON HILL PARTNERS, LP
   
 
By:
Equinox Asset Management LLC,
   
General Partner
     
 
By:
/s/ Sean M. Fieler
   
Name:
Sean M. Fieler
   
Title:
Manager
 
 
18
 
CUSIP NO. 55903Q104
 
 
EQUINOX ILLIQUID GENERAL PARTNER, LP
   
 
By:
/s/ Sean M. Fieler
   
Name:
Sean M. Fieler
   
Title:
Authorized Signatory


 
EQUINOX ILLIQUID FUND, LP
   
 
By:
Equinox Illiquid General Partner, LP,
   
General Partner
     
 
By:
/s/ Sean M. Fieler
   
Name:
Sean M. Fieler
   
Title:
Authorized Signatory


 
/s/ Sean M. Fieler
 
SEAN M. FIELER


 
CCM OPPORTUNISTIC PARTNERS, LP
   
 
By:
CCM Opportunistic Partners GP, LP,
   
General Partner
     
 
By:
CCM GP, LLC,
   
General Partner
     
     
 
By:
/s/ Alfred John Knapp, Jr.
   
Name:
Alfred John Knapp, Jr.
   
Title:
Manager


 
CCM OPPORTUNISTIC ADVISORS, LLC
   
 
By:
/s/ Alfred John Knapp, Jr.
   
Name:
Alfred John Knapp, Jr.
   
Title:
Manager


 
/s/ Alfred John Knapp, Jr.
 
ALFRED JOHN KNAPP, JR.
 
 
19
 
CUSIP NO. 55903Q104
 
SCHEDULE A
 
Transactions in the Shares of Common Stock During the Past 60 Days
 
Shares of Common Stock
Purchased / (Sold)
Price Per
Share($)
Date of
Purchase / Sale
     
JEFFREY EBERWEIN
 
09/05/12
100,000
C$9.401
     
EQUINOX PARTNERS, L.P.
     
07/05/12
25,600
C$9.31
07/06/12
23,400
C$9.24
07/10/12
41,000
C$9.33
07/11/12
60,200
C$9.10
07/12/12
131,000
C$8.76
07/13/12
16,100
C$9.06
07/16/12
5,900
C$9.31
07/17/12
2,600
C$9.33
07/20/12
74,200
C$9.24
09/05/12
248,710
C$9.401



1 Shares of Common Stock purchased in a private placement offering conducted by the Issuer that closed on September 5, 2012.
 EX-99.1 2 ex991to13da208911002_090512.htm ex991to13da208911002_090512.htm
Exhibit 99.1
 

 
SETTLEMENT AGREEMENT
 
THIS AGREEMENT dated this 5th day of September, 2012 (this "Agreement"), is by and among each of the persons and entities listed on Schedule A hereto (collectively, the "MISV Group", and individually, a "member" of the MISV Group) and MAG Silver Corp. (the "Company").
 
WHEREAS the MISV Group has (i) filed a Schedule 13D with the United States Securities and Exchange Commission, most recently amended as of June 28, 2012, relating to its beneficial ownership of common shares of the Company, (ii) communicated on several occasions its desire for the Company to pursue certain alternative strategic initiatives, and (iii) informed the Company that it intends to solicit proxies for the election of its own slate of nominees for election to the Company’s board of directors (the "Board") at the 2012 annual general and special meeting of shareholders of the Company to be held on October 5, 2012 (the "2012 Annual Meeting");
 
AND WHEREAS the Company and the MISV Group have agreed that it is in their mutual interests to enter into this Agreement to terminate the pending proxy contest and to set forth, among other things, the parties’ mutual understanding relating to the 2012 Annual Meeting and the other matters contemplated herein;
 
NOW THEREFORE in consideration of the respective representations, warranties, covenants, agreements and conditions hereinafter set forth and for other good and valuable consideration (the receipt and sufficiency of which are acknowledged by each party hereto), the parties hereto agree as follows:
 
1.   Defined Terms.
 
For the purposes of this Agreement, unless the context otherwise requires, the following terms shall have the respective meanings set out below and grammatical variations of such terms shall have corresponding meanings:
 
 
(a)
"Affiliate" of a Person means, as at the date relevant for determination, a Person that directly, or indirectly though one or more intermediaries, controls or is controlled by, or is under common control with, or manages or is managed by, such Person.  For the purposes of this definition, "control" means, as to any Person, the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract, or otherwise, and the term "controlled" has a correlative meaning.
 
 
(b)
"Person" shall mean any individual, partnership, corporation, company, group, syndicate, trust, partnership or other entity.
 
2.   Board Composition; 2012 Annual Meeting.
 
(a)           The directors of the Board shall remain unchanged prior to the 2012 Annual Meeting.
 
 
 
 
 
(b)           The Company shall present a slate of nine (9) director nominees to the 2012 Annual Meeting, constituted as set forth in Section 2(c).
 
(c)           The Company shall take any and all steps necessary and advisable to (i) nominate each of Daniel T. MacInnis, Eric H. Carlson, Richard M. Colterjohn, Dr. Peter K. Megaw, Jonathan A. Rubenstein, Derek C. White and Frank Hallam (collectively, the "Continuing Nominees") along with Peter Barnes and Richard Clark (the "MISV Nominees" and, together with the Continuing Nominees, the "Nominees"), as a director of the Company, in each case with a term expiring at the Company's 2013 annual meeting of shareholders (the "2013 Annual Meeting"); (ii) recommend, support and solicit proxies for the election of the Nominees at the 2012 Annual Meeting; and (iii) cause all proxies received by the Company to be voted in the manner specified by such proxies.
 
(d)           Provided that the MISV Group has supplied the Company with all information regarding the MISV Nominees reasonably required under applicable corporate and securities laws and the rules of the Toronto Stock Exchange and the NYSE MKT exchange by no later than 9:00 a.m. (Toronto time) on September 7, 2012, the Company shall not adjourn or postpone the 2012 Annual Meeting unless the Board acting in good faith and in the exercise of its fiduciary duty, determines that such adjournment or postponement is reasonably necessary and obtains the prior written consent of the MISV Group, which consent shall not be unreasonably withheld or delayed.
 
(e)           The Company agrees that if either of the MISV Nominees is unable or unwilling to serve as a director, resigns as a director, or is removed as a director prior to the 2013 Annual Meeting, and at such time Mason Hill Advisors LLC, Equinox Asset Management LLC, Equinox Partners, L.P., Mason Hill Partners, LP, Equinox Illiquid General Partner, LP, Equinox Illiquid Fund, LP and Sean M. Fieler (together, the “Mason Hill Entities”) beneficially own, in the aggregate, at least 70% of the common shares of the Company they own collectively as of the date hereof, the Mason Hill Entities shall be entitled to nominate a substitute individual acceptable to the Board, acting reasonably, to serve on the Board in place of each such MISV Nominee that is so unable or unwilling to act or has been removed.  In the event the Board, acting reasonably, does not accept a substitute individual recommended by the Mason Hill Entities, the Mason Hill Entities will have the right to recommend additional substitute individual(s) for consideration by the Board.   Upon the acceptance of a replacement director nominee by the Board, the Board will appoint such replacement director to the Board no later than five (5) business days after the Board accepts such replacement director.
 
(f)           The Company agrees that the size of the Board shall not be increased to more than nine (9) directors prior to the termination of this Agreement.
 
(g)           The Company agrees that the only matters that may be presented by the Company for consideration at the 2012 Annual Meeting are (i) the election of directors, (ii) the appointment of the Company’s independent registered public accounting firm, and (iii) the approval of the advance notice policy adopted on August 23, 2012.
 
 
2
 
 
3.   2013 Annual Meeting
 
(a)           The Company shall present a slate of not more than nine (9) nominees for the Board to the 2013 Annual Meeting, constituted in part as set forth in Section 3(b).
 
(b)           The Company shall nominate the MISV Nominees as part of such slate, provided that if either of the MISV Nominees is unable or unwilling to continue as a director of the Company and at such time the Mason Hill Entities beneficially own, in the aggregate, at least 70% of the common shares of the Company they own collectively as of the date hereof, the Mason Hill Entities shall be entitled to nominate a substitute individual acceptable to the Board, acting reasonably, to serve on the Board in place of each such MISV Nominee that is so unable or unwilling to act.  In the event the Board, acting reasonably, does not accept a substitute individual recommended by the Mason Hill Entities, the Mason Hill Entities will have the right to recommend additional substitute individual(s) for consideration by the Board.  For the avoidance of doubt, any reference in this Agreement to the “MISV Nominee” shall include any replacement nominee selected in accordance with the provisions of Section 2(e) above and this clause (b).
 
(c)           The Company shall recommend, support and solicit proxies for the election of the slate presented in accordance with this Section 3 and cause all proxies received by the Company to be voted in the manner specified by such proxies.
 
4.   Announcement and Public Disclosures.
 
(a)           As soon as practicable following the execution and delivery of this Agreement, the Company and the MISV Group shall issue the joint press release attached hereto as Schedule C (the "Press Release").
 
(b)           None of the parties hereto shall (i) make any public statements (including in any filing with the Canadian or United States securities regulators or any other regulatory or governmental agency, including any stock exchange) that are inconsistent with, or otherwise contrary to, the statements in the Press Release issued pursuant to this Section 4; or (ii) except as required by applicable law or the rules of any stock exchange, issue or cause the publication of any press release or other public announcement with respect to the matters that are the subject of this Agreement, without the prior written consent of the parties hereto.  The parties acknowledge that the Company will file a copy of this Agreement on SEDAR and EDGAR and the MISV Group will file a copy of this Agreement with a Schedule 13D amendment on EDGAR.
 
5.   Expenses
 
(a)           The Company shall reimburse the MISV Group, to a maximum of US$200,000 in the aggregate, for all expenses incurred by the MISV Group up to the date of this Agreement in respect of the subject matter hereof, together with all expenses relating to any filings required by applicable laws relating to the Schedule 13D ("Expenses") within 14 days following receipt by the MISV Group of reasonable documentation of those Expenses.
 
 
3
 
 
(b)           For the purposes of this Section 5, Expenses are limited to out-of-pocket costs and expenses, including the fees of external advisors and the disbursements of the MISV Group and their external advisors, incurred in connection with:
 
 
(i)
the activities of the MISV Group in furtherance of seeking representation on the Board; and
 
 
(ii)
the negotiation and execution of this Agreement.
 
(c)           Except as expressly provided in this Section 5, each of the parties hereto shall be solely responsible for its costs and expenses.
 
6.   Proxy Solicitation; Voting.
 
(a)           From the date hereof, each member of the MISV Group shall immediately cease and shall cause all of their respective Affiliates immediately to cease, any and all efforts with respect to soliciting proxies from the Company's shareholders or otherwise attempting to influence the conduct of the Company's shareholders or the voting of any of the Company's voting securities in connection with the 2012 Annual Meeting.
 
(b)           Each member of the MISV Group shall, and shall cause each of its Affiliates to, subject to the compliance by the Company of Sections 2 and 3 hereof:
 
 
(i)
complete and cause the management forms of proxy in respect of all voting securities of the Company that it is entitled to vote at the 2012 Annual Meeting other than the common shares of the Company issued to members of the MISV Group pursuant to the private placement completed on September 5, 2012 to be validly executed and delivered to management of the Company no later than 5:00 p.m. (Toronto time) on October 1, 2012 to be voted in favour of the election of each of the Nominees at the 2012 Annual Meeting and in favour of approval of the advance notice policy adopted on August 23, 2012, and to not withdraw such forms of proxy; and
 
 
(ii)
complete and cause the management forms of proxy in respect of all voting securities of the Company that it is entitled to vote at the 2013 Annual Meeting other than the common shares of the Company issued to members of the MISV Group pursuant to the private placement completed on September 5, 2012 to be validly executed and delivered to management of the Company no later than 24 hours prior to the proxy cut-off for the 2013 Annual Meeting to be voted in favour of the election of each of the nominees to the Board proposed by management for election in accordance with the provisions hereof as well as the renewal of the Company’s Shareholder Rights Plan in its current form at the 2013 Annual Meeting, and to not withdraw those forms of proxy; and
 
 
(iii)
to otherwise take any and all steps required to effectively vote all of its voting securities of the Company beneficially owned or over which it has voting power at the relevant record date in favour of the election of the Nominees for the 2012 Annual Meeting and in favour of the election of the nominees to the Board proposed by management for the 2013 Annual Meeting.
 
 
4
 
 
7.   Standstill Restrictions.
 
Without the prior written consent of the Company, no member of the MISV Group shall, and each member of the MISV Group shall cause its Affiliates and each of its respective directors, officers, employees, agents or other Persons acting on behalf of any member of the MISV Group, directly or indirectly, not to, do any of the following prior to the conclusion of the 2013 Annual Meeting, subject to the compliance by the Company of Sections 2 and 3 hereof; provided that clause (b) below shall apply only to the Mason Hill Entities:
 
(a)           solicit (as such term is defined in National Instrument 51-102 – Continuous Disclosure Obligations) proxies, or engage in, participate in, or in any way initiate, directly or indirectly, any solicitation of shareholders of the Company to vote any voting securities of the Company on any matter, except in all cases as expressly provided in this Agreement;
 
(b)           (i) acquire or agree to acquire, or make any proposal to acquire, directly or indirectly, beneficial ownership of any common shares (or other securities convertible into common shares) issued by the Company, if in any such case, immediately after the taking of such action, the Mason Hill Entities would, in the aggregate, collectively beneficially own more than 15% of the then-outstanding common shares of the Company, or (ii) form a group or otherwise work jointly or in concert in any manner, directly or indirectly, and whether by written or oral agreement, with any other Person such that the beneficial ownership of common shares (or other securities convertible into common shares) of the Mason Hill Entities together with any such Persons would, immediately after taking such action, exceed 15% of the then-outstanding common shares of the Company;
 
(c)           deposit any shares of the Company in any voting trust or subject any shares of the Company to any arrangement or agreement with respect to the voting of any such shares, except as contemplated in this Agreement;
 
(d)           seek, alone or in concert with others, (1) to requisition a meeting of shareholders of the Company, (2) to obtain representation on, or nominate or propose the nomination of any candidate for election to, the Board except as expressly set forth in this Agreement, or (3) to effect the removal of any member of the Board or otherwise alter the composition of the Board;
 
(e)           submit any shareholder proposal pursuant to Division 7 of the Business Corporations Act (British Columbia) (the "B.C. Corporations Act"); or
 
(f)           advise, assist or encourage or negotiate with any other Person to take any action inconsistent with the foregoing.
 
 
5
 
 
8.   Representations and Warranties.
 
 
(a)
Each of the members of the MISV Group represents and warrants as follows as of the date hereof:
 
 
(i)
Each member of the MISV Group has the power and authority to execute, deliver and carry out the terms and provisions of this Agreement.
 
 
(ii)
This Agreement has been duly and validly authorized, executed and delivered by each member of the MISV Group, constitutes a valid and binding obligation and agreement of each such member and is enforceable against each such member in accordance with its terms.
 
 
(iii)
Each member of the MISV Group is the beneficial owner of the number of common shares of the Company set forth on Schedule B hereto and such common shares in the aggregate constitute all of the voting securities of the Company beneficially owned or controlled by the members of the MISV Group and their Affiliates.
 
 
(iv)
 Each of the MISV Nominees is qualified to serve as a director under the B.C. Corporations Act.
 
 
(b)
The Company hereby represents and warrants as follows as of the date hereof:
 
 
(i)
The Company has the power and authority to execute, deliver and carry out the terms and provisions of this Agreement.
 
 
(ii)
This Agreement has been duly and validly authorized, executed and delivered by the Company, constitutes a valid and binding obligation and agreement of the Company and is enforceable against the Company in accordance with its terms.
 
9.   Remedies; Breaches.
 
(a)           Each of the members of the MISV Group, on the one hand, and the Company, on the other hand, acknowledges and agrees that irreparable harm to the other party hereto will occur in the event any of the provisions of this Agreement was not performed in accordance with its specific terms or was otherwise breached and that such injury may not be adequately compensable in damages.  It is accordingly agreed that the members of the MISV Group, on the one hand, and the Company, on the other hand, shall, in addition to any other remedy to which they may be entitled at law or in equity, each be entitled to seek specific enforcement of, and injunctive relief to prevent any violation of, the terms hereof, and the other party hereto will not take any action, directly or indirectly, in opposition to the party seeking relief on the grounds that any other remedy or relief is available at law or in equity.
 
(b)           Each member of the MISV Group, severally and not jointly, on the one hand, and the Company, on the other hand, acknowledges that it shall be liable for any breach of this Agreement by any of its Affiliates, directors, officers, employees, agents or other Persons acting on their behalf and that it shall inform its directors, officers, employees and agents of the terms of this Agreement and shall cause them to comply with the terms and conditions set forth herein.
 
 
6
 
 
10.   Termination.
 
Except as set forth herein, the provisions of this Agreement shall terminate upon, and this Agreement shall remain in full force and effect and shall be fully binding on the parties hereto in accordance with the provisions hereof until, the termination of the 2013 Annual Meeting.  No termination pursuant to this Section 10 shall relieve any party hereto from any liability for any breach of this Agreement prior to such time.
 
11.   No Waiver.
 
Any waiver by any party of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement.  The failure of a party to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
 
12.   Successors and Assigns.
 
No party may assign any of its rights or benefits under this Agreement, or delegate any of its duties or obligations, except with the prior written consent of the other parties.  This Agreement shall enure to the benefit of and shall be binding on and enforceable by and against the parties and their respective successors or heirs, executors, administrators and other legal personal representatives, and permitted assigns.
 
13.   Entire Agreement; Amendments.
 
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supercedes all prior agreements, understanding, negotiations and discussions, whether written or oral.  There are no conditions, restrictions, agreements, promises, representations, warranties, covenants or other provisions, express or implied, collateral, statutory or otherwise, relating to the subject matter hereof except as provided herein.  This Agreement may be amended only by a written instrument duly executed by the parties or their respective successors or permitted assigns.
 
14.   Notices.
 
All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt), (b) upon sending if sent by electronic mail or facsimile, with electronic confirmation of sending, provided, however, that a copy is sent on the same day by registered mail, return receipt requested, in each case to the appropriate mailing and electronic mail or facsimile address set forth below, (c) one (1) day after being sent by North American recognized overnight carrier to the addresses set forth below or (d) when actually delivered if sent by any other method that results in delivery (with written confirmation of receipt):
 
 
7
 
 
 
(a)
If to the Company:
 
MAG Silver Corp.
Suite 770, 800 West Pender Street
Vancouver, British Columbia  V6C 2V6
Attn:      President and CEO
Fax:        (604) 681-0894
 
with a copy (which shall not constitute notice) to:
 
Davies Ward Phillips & Vineberg LLP
44th Floor 1 First Canadian Place
Toronto, Ontario  M5X 1B1
Attn:      Kevin Thomson and Melanie Shishler
Fax:        (416) 863-0871
 
- and –
 
 
(b)
If to the MISV Group or the Mason Hill Entities:
 
c/o Equinox Partners, L.P.
623 Fifth Avenue, 27th Floor
New York, NY 10022
Attn:      Marco LoCascio
Fax:        (212) 832-2215
 
with a copy to (which shall not constitute notice):
 
Osler, Hoskin & Harcourt LLP
620 8th Avenue – 36th Floor
New York, NY 10018
Attn:      Randall Pratt
Fax:        (212) 867-5802

and
 
Olshan Frome Wolosky LLP
Park Avenue Tower
65 East 55th Street
New York, New York 10022
Attn: Steve Wolosky and Michael Neidell
Fax: (212) 451-2222
 
 
8
 
 
in each case, or to such other address as the Person to whom notice is given may have previously furnished to the others in writing in the manner set forth above.
 
15.   Governing Law and Submission to Jurisdiction.
 
(a)           This Agreement shall be interpreted and enforced in accordance with, and the respective rights and obligations of the parties shall be governed by, laws of the Province of Ontario and the federal laws of Canada applicable therein.
 
(b)           Each of the parties irrevocably and unconditionally (i) submits to the non-exclusive jurisdiction of the courts of the Province of Ontario over any action or proceeding arising out of or relating to this Agreement, (ii) waives any objection that it might otherwise be entitled to assert to the jurisdiction of such courts and (iii) agrees not to assert that such courts are not a convenient forum for the determination of any such action or proceeding.
 
16.   Counterparts.
 
This Agreement may be executed and delivered in any number of counterparts, with the same effect as if all parties had signed and delivered the same document, and all counterparts shall be construed together to be an original and will constitute one and the same agreement.
 
17.   Severability.
 
If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, all other provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto.
 
 [Remainder of page intentionally left blank.]
 
 
9
 

 
 
MAG SILVER CORP.
   
 
By:
/s/ Jonathan A. Rubenstein
   
Name:
Jonathan A. Rubenstein
   
Title:
Chairman
       
   
/s/ Daniel T. MacInnis
   
Name:
Daniel T. MacInnis
   
Title:
President and CEO
 
 
10
 
 
   
/s/ Jeffrey E. Eberwein
Witness
  
Jeffrey E. Eberwein

 
   
/s/ Charles M. Gillman
Witness
  
Charles M. Gillman

 
 
MASON HILL PARTNERS, LP
   
 
By:
Equinox Asset Management LLC,
General Partner
   
 
By:
/s/ Sean M. Fieler
   
Name:
Sean M. Fieler
   
Title:
Manager

 
 
EQUINOX PARTNERS, L.P.
   
 
By:
Equinox Asset Management LLC,
General Partner
   
 
By:
/s/ Sean M. Fieler
   
Name:
Sean M. Fieler
   
Title:
Manager

 
 
MASON HILL ADVISORS LLC
   
   
 
By:
/s/ Sean M. Fieler
   
Name:
Sean M. Fieler
   
Title:
Manager
 
 
11
 
 
 
EQUINOX ASSET MANAGEMENT LLC
   
   
 
By:
/s/ Sean M. Fieler
   
Name:
Sean M. Fieler
   
Title:
Manager

 
 
EQUINOX ILLIQUID FUND, LP
   
 
By:
Equinox Illiquid General Partner, LP,
General Partner
   
 
By:
/s/ Sean M. Fieler
   
Name:
Sean M. Fieler
   
Title:
Authorized Signatory

 
 
EQUINOX ILLIQUID GENERAL PARTNER, LP
   
   
 
By:
/s/ Sean M. Fieler
   
Name:
Sean M. Fieler
   
Title:
Authorized Signatory
 
 
   
/s/ Sean M. Fieler
Witness
  
Sean M. Fieler

 
 
12
 
 
 
CCM OPPORTUNISTIC PARTNERS, LP
   
 
By:
CCM Opportunistic Partners GP, LP,
General Partner
     
 
By:
CCM GP, LLC,
General Partner
   
 
By:
/s/ Alfred John Knapp, Jr.
   
Name:
Alfred John Knapp, Jr.
   
Title:
Manager

 
 
CCM OPPORTUNISTIC ADVISORS, LLC
   
   
 
By:
/s/ Alfred John Knapp, Jr.
   
Name:
Alfred John Knapp, Jr.
   
Title:
Manager
 
 
   
/s/ Alfred John Knapp, Jr.
Witness
  
Alfred John Knapp, Jr.

 
 
13
 
 
SCHEDULE A
 
MISV GROUP MEMBERS
 
Jeffrey E. Eberwein
 
Charles M. Gillman
 
Mason Hill Partners, LP
 
Equinox Partners, L.P.
 
Mason Hill Advisors LLC
 
Equinox Asset Management LLC
 
Equinox Illiquid Fund, LP
 
Equinox Illiquid General Partner, LP
 
Sean M. Fieler
 
CCM Opportunistic Partners, LP
 
CCM Opportunistic Advisors, LLC
 
Alfred John Knapp, Jr.
 
 
 
 
 
SCHEDULE B
 
BENEFICIAL OWNERSHIP OF COMMON SHARES OF THE COMPANY
 

Beneficial Owner
Number of Common Shares Beneficially Owned
Jeffrey E. Eberwein
200,0001
Charles M. Gillman
0
Mason Hill Partners, LP
493,800
Equinox Partners, L.P.
4,946,5102
Mason Hill Advisors LLC
0 (As the investment advisor of each of Mason Hill Partners, LP, Equinox Partners, L.P. and Equinox Illiquid Fund, LP, Mason Hill Advisors LLC may be deemed the beneficial owner of the 5,455,310 common shares owned in the aggregate by Mason Hill Partners, LP, Equinox Partners, L.P. and Equinox Illiquid Fund, LP.)
Equinox Asset Management LLC
0 (As the sole general partner of each of Mason Hill Partners, LP and Equinox Partners, L.P., Equinox Asset Management LLC may be deemed the beneficial owner of the 5,440,310 common shares owned in the aggregate by Mason Hill Partners, LP and Equinox Partners, L.P.)
Equinox Illiquid Fund, LP
15,000
Equinox Illiquid General Partner, LP
0 (As the sole general partner of Equinox Illiquid Fund, LP, Equinox Illiquid General Partner, LP may be deemed the beneficial owner of the 15,000 common shares owned by Equinox Illiquid Fund, LP.)
Sean M. Fieler
0 (As the owner of a controlling interest in Mason Hill Advisors LLC and the managing member of each of Mason Hill Advisors LLC and Equinox Asset Management LLC, Mr. Fieler may be deemed the beneficial owner of the 5,455,310 common shares owned in the aggregate by Mason Hill Partners, LP, Equinox Partners, L.P. and Equinox Illiquid Fund, LP.)
CCM Opportunistic Partners, LP
42,453
CCM Opportunistic Advisors, LLC
42,453 (As the investment manager of CCM Opportunistic Partners, LP, CCM Opportunistic Advisors, LLC may be deemed the beneficial owner of the 42,453 common shares owned by CCM Opportunistic Partners, LP.)
Alfred John Knapp, Jr.
134,050 (As the manager of CCM Opportunistic Advisors, LLC, Mr. Knapp may be deemed the beneficial owner of the 42,453 common shares owned by CCM Opportunistic Partners, LP, in addition to the 134,050 shares of Common Stock owned by him individually).
 
 


1 Includes 100,000 Common Shares subscribed for in a private placement offering conducted by the Company that is expected to close on or about the date hereof.
 
2 Includes 248,710 Common Shares subscribed for in a private placement offering conducted by the Company that is expected to close on or about the date hereof.
 
 
 
 
 
SCHEDULE C
 
PRESS RELEASE
 
[See attached.]
 
 
 EX-99.2 3 ex992to13da208911002_090512.htm ex992to13da208911002_090512.htm
Exhibit 99.2
 
JOINT FILING AGREEMENT
 
In accordance with Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of each of them of a Statement on Schedule 13D (including additional amendments thereto) with respect to the shares of Common Stock, without par value, of MAG Silver Corp.  This Joint Filing Agreement shall be filed as an Exhibit to such Statement.
 
Dated:  September 7, 2012
 
 
MASON HILL ADVISORS LLC
   
 
By:
/s/ Sean M. Fieler
   
Name:
Sean M. Fieler
   
Title:
Manager


 
EQUINOX ASSET MANAGEMENT LLC
   
 
By:
/s/ Sean M. Fieler
   
Name:
Sean M. Fieler
   
Title:
Manager


 
EQUINOX PARTNERS, L.P.
   
 
By:
Equinox Asset Management LLC,
   
General Partner
     
 
By:
/s/ Sean M. Fieler
   
Name:
Sean M. Fieler
   
Title:
Manager


 
MASON HILL PARTNERS, LP
   
 
By:
Equinox Asset Management LLC,
   
General Partner
     
 
By:
/s/ Sean M. Fieler
   
Name:
Sean M. Fieler
   
Title:
Manager
 
 
 
 
 
 
EQUINOX ILLIQUID GENERAL PARTNER, LP
   
 
By:
/s/ Sean M. Fieler
   
Name:
Sean M. Fieler
   
Title:
Authorized Signatory


 
EQUINOX ILLIQUID FUND, LP
   
 
By:
Equinox Illiquid General Partner, LP,
   
General Partner
     
 
By:
/s/ Sean M. Fieler
   
Name:
Sean M. Fieler
   
Title:
Authorized Signatory


 
/s/ Sean M. Fieler
 
SEAN M. FIELER