Break Fee. (a) If: (i) Domtar shall terminate this Agreement pursuant to Section 8.01(d)(ii), unless at the time of such termination, an event has occurred and is continuing that has a Newco Material Adverse Effect; (ii) Weyerhaeuser shall terminate this Agreement pursuant to Section 8.01(c)(ii), unless at the time of such failure to recommend, withdrawal or adverse modification or change, or recommendation of an Acquisition Proposal, an event has occurred and is continuing that has a Newco Material Adverse Effect; or (iii) either Domtar or Weyerhaeuser shall terminate this Agreement pursuant to Section 8.01(b)(i) or 8.01(b)(ii) in circumstances where Domtar Shareholder Approval has not been obtained at the Domtar Meeting, and (x)(A) in the case of a termination of this Agreement pursuant to Section 8.01(b)(i), a bona fide Acquisition Proposal has been made by any person other than a Weyerhaeuser Party prior to the Domtar Meeting and not withdrawn more than five days prior to the vote of the Domtar Shareholders and holders of Domtar Options, or (B) in the case of a termination of this Agreement pursuant to Section 8.01(b)(ii), a bona fide Acquisition Proposal has been made by any Person other than a Weyerhaeuser Party that is either publicly disclosed or otherwise becomes publicly known prior to or at the time of the Domtar Meeting and that is not withdrawn more than five days prior to the vote of the Domtar Shareholders and holders of Domtar Options, and (y) Domtar enters into an agreement with respect to any Acquisition Proposal, or any Acquisition Proposal is consummated, after the date hereof and prior to the expiration of 12 months following termination of this Agreement, unless at the time of the Domtar Meeting an event has occurred and is continuing that has a Newco Material Adverse Effect; then in any such case Domtar shall pay to Weyerhaeuser $62,000,000 (the “Break Fee”) in immediately available funds to an account designated by Weyerhaeuser. Such payment shall be due (A) in the case of a termination specified in clause (i), prior to the termination of this Agreement, (B) in the case of a termination specified in clause (ii), within five Business Days after written notice of termination by Weyerhaeuser, or (C) in the case of a termination specified in clause (iii), at or prior to the earlier of the entering into of the agreement and the consummation of the transaction referred to therein; provided, however, that in the event that Domtar has reimbursed Weyerhaeuser for its out-of-pocket expenses pursuant to Section 6.21(b) prior to the date on which the Break Fee is payable, then the amount of the Break Fee payable shall be reduced by the amount of expenses actually reimbursed by Domtar pursuant to Section 6.21(b). Domtar shall not be obligated to make more than one payment pursuant to this Section 6.21(a). (b) Domtar shall reimburse Weyerhaeuser for all its out-of-pocket expenses actually incurred in connection with this Agreement, the Original Agreement and the Transactions, subject to a maximum of $10,000,000, if this Agreement is terminated in the circumstances specified in clause (iii) of Section 6.21(a) and the Break Fee is not payable upon the date of such termination. Such reimbursement shall be paid on demand following such termination.
Appears in 1 contract
Samples: Transaction Agreement (Domtar CORP)
Break Fee. (a) If:Notwithstanding anything in this Agreement to the contrary, in the event that either
(i) Domtar shall terminate this Agreement pursuant (x) the conditions precedent in Sections 6 and 7 of the Xxxxxxxx APA are satisfied or waived, (y) the parties to Section 8.01(d)(ii)the Xxxxxxxx APA other than the Purchaser are then willing to consummate the closing under the Xxxxxxxx APA, unless but (z) the Purchaser fails at such time to consummate the time of such terminationclosing under the Xxxxxxxx APA, an event has occurred and is continuing that has a Newco Material Adverse Effect;
for any or no reason; or (ii) Weyerhaeuser shall terminate this Agreement pursuant to Section 8.01(c)(ii), unless at (x) the time of such failure to recommend, withdrawal or adverse modification or change, or recommendation of an Acquisition Proposal, an event has occurred conditions precedent in Sections 6 and is continuing that has a Newco Material Adverse Effect; or
(iii) either Domtar or Weyerhaeuser shall terminate this Agreement pursuant to Section 8.01(b)(i) or 8.01(b)(ii) in circumstances where Domtar Shareholder Approval has not been obtained at the Domtar Meeting, and (x)(A) in the case of a termination 7 of this Agreement pursuant to Section 8.01(b)(i)are satisfied or waived, a bona fide Acquisition Proposal has been made by any person other than a Weyerhaeuser Party prior to the Domtar Meeting and not withdrawn more than five days prior to the vote of the Domtar Shareholders and holders of Domtar Options, or (B) in the case of a termination of this Agreement pursuant to Section 8.01(b)(ii), a bona fide Acquisition Proposal has been made by any Person other than a Weyerhaeuser Party that is either publicly disclosed or otherwise becomes publicly known prior to or at the time of the Domtar Meeting and that is not withdrawn more than five days prior to the vote of the Domtar Shareholders and holders of Domtar Options, and (y) Domtar enters into an agreement with respect the Company and the Shareholders are then willing to any Acquisition Proposal, or any Acquisition Proposal is consummated, after complete the date hereof and prior to sale of the expiration of 12 months following termination of Purchased Shares under this Agreement, unless but (z) the Purchaser fails at such time to purchase the time of Purchased Shares, for any or no reason, the Domtar Meeting an event has occurred and is continuing that has a Newco Material Adverse Effect; then in any such case Domtar Purchaser shall within five business days pay to Weyerhaeuser the Company a break fee in the amount of $62,000,000 100,000 (the “Purchaser Break Fee”) in immediately available funds ). The obligation to an account designated pay the Purchaser Break Fee shall not relieve the Purchaser of its obligation to indemnify the Company or the Shareholders for any Claim the Company or the Shareholders may have against the Purchaser by Weyerhaeuser. Such payment shall be due (A) in reason of its failure to complete the case purchase of a termination specified in clause (i)the Purchased Shares, prior provided that the Purchaser Break Fee once paid by the Purchaser to the termination of this Agreement, (B) in Company will be deducted from any Claim the case of a termination specified in clause (ii), within five Business Days after written notice of termination by Weyerhaeuser, Company or (C) in the case of a termination specified in clause (iii), at or prior Shareholders may have against the Purchaser for its failure to complete the earlier purchase of the entering into of the agreement and the consummation of the transaction referred to therein; provided, however, that in the event that Domtar has reimbursed Weyerhaeuser for its out-of-pocket expenses pursuant to Section 6.21(b) prior to the date on which the Break Fee is payable, then the amount of the Break Fee payable shall be reduced by the amount of expenses actually reimbursed by Domtar pursuant to Section 6.21(b). Domtar shall not be obligated to make more than one payment pursuant to this Section 6.21(a)Purchased Shares.
(b) Domtar shall reimburse Weyerhaeuser Notwithstanding anything in this Agreement to the contrary, in the event that either
(i) (x) the conditions precedent in Sections 6 and 7 of the Xxxxxxxx APA are satisfied or waived, (y) the parties to the Xxxxxxxx APA other than Xxxxxxxx or any of the Shareholders, as the case may be, are then willing to consummate the closing under the Xxxxxxxx APA, but (z) Xxxxxxxx or such Shareholder fails at such time to consummate the closing under the Xxxxxxxx APA, for all its out-of-pocket expenses actually incurred any or no reason; or (ii) (x) the conditions precedent in connection with Sections 6 and 7 of this Agreement are satisfied or waived, (y) the Purchaser is then willing to purchase the Purchased Shares under this Agreement, but (z) the Original Agreement and Company or any Shareholder, as the Transactionscase may be, subject fails at such time to complete the sale of the Purchased Shares, for any or no reason, the Company shall within five business days pay to the Purchaser a maximum break fee in the amount of $10,000,000, if this Agreement is terminated in 100,000 (the circumstances specified in clause (iii) of Section 6.21(a) and “Company Break Fee”). The obligation to pay the Company Break Fee is shall not payable upon relieve the date Company or any Shareholder of such termination. Such reimbursement shall his or its obligation to indemnify the Purchaser for any Claim the Purchaser may have against the Company or any Shareholder by reason of his or its failure to complete the sale of the Purchased Shares, provided that the Company Break Fee once paid by the Company to the Purchaser will be paid on demand following such terminationdeducted from any Claim the Purchaser may have against the Company or any Shareholder for the failure to complete the sale of the Purchased Shares.
Appears in 1 contract
Samples: Share Purchase Agreement
Break Fee. (a1) If:
(i) Domtar shall terminate Notwithstanding any other provision contained in this Agreement pursuant respecting expenses and costs and payments thereof, Xxxxx One shall be entitled to Section 8.01(d)(iia termination fee equal to $100,000 ("Xxxxx One Termination Fee"), unless at upon the time occurrence of such terminationany of the following events (each, an event has occurred and is continuing that has a Newco Material Adverse Effect;
(ii) Weyerhaeuser shall terminate this Agreement pursuant to Section 8.01(c)(ii"Xxxxx One Termination Fee Event"), unless at the time of such failure which shall be paid by Agile to recommend, withdrawal or adverse modification or change, or recommendation of an Acquisition Proposal, an event has occurred and is continuing that has a Newco Material Adverse Effect; or
(iii) either Domtar or Weyerhaeuser shall terminate this Agreement pursuant to Section 8.01(b)(i) or 8.01(b)(ii) in circumstances where Domtar Shareholder Approval has not been obtained at the Domtar Meeting, and (x)(A) in the case of a termination of this Agreement pursuant to Section 8.01(b)(i), a bona fide Acquisition Proposal has been made by any person other than a Weyerhaeuser Party prior to the Domtar Meeting and not withdrawn more than Xxxxx One within five days prior to from the vote date of the Domtar Shareholders and holders of Domtar Options, or (B) in the case of a termination of this Agreement pursuant to Section 8.01(b)(ii), a bona fide Acquisition Proposal has been made by any Person other than a Weyerhaeuser Party that is either publicly disclosed or otherwise becomes publicly known prior to or at the time of the Domtar Meeting and that is not withdrawn more than five days prior to the vote of the Domtar Shareholders and holders of Domtar Options, and (y) Domtar enters into an agreement with respect to any Acquisition Proposal, or any Acquisition Proposal is consummated, after the date hereof and prior to the expiration of 12 months following termination of this Agreement, unless at the time of the Domtar Meeting an event has occurred and is continuing that has a Newco Material Adverse Effect; then in any such case Domtar shall pay to Weyerhaeuser $62,000,000 (the “Break Fee”) in immediately available funds to an account designated by Weyerhaeuserrespective Xxxxx One Termination Fee Event. Such payment shall be due (A) in the case of a termination specified in clause (i), prior to the termination of this Agreement, (B) in the case of a termination specified in clause (ii), within five Business Days after written notice of termination by Weyerhaeuser, or (C) in the case of a termination specified in clause (iii), at or prior to the earlier of the entering into of the agreement and the consummation of the transaction referred to therein; provided, however, that in the event that Domtar has reimbursed Weyerhaeuser for its out-of-pocket expenses pursuant to Section 6.21(b) prior to the date on which the Break The Xxxxx One Termination Fee is payable, then the amount of the Break Fee payable shall be reduced by the amount of expenses actually reimbursed the Deposit which has been paid by Domtar pursuant Agile to Xxxxx One in accordance with Section 6.21(b2.4 as of the Xxxxx One Termination Fee Event, and Agile shall only be required to pay to Xxxxx One the difference between the Xxxxx One Termination Fee and the amount of the Deposit so paid.
(i) if the board of directors of Agile shall have withdrawn, modified, qualified or changed its approval of this Agreement or any of its recommendations to Agile shareholders or determinations with respect to its support for the Transaction in a manner adverse to Xxxxx One, or shall have resolved to do so prior to the Closing Date, or has failed to publicly reconfirm any such recommendation or determination upon the request of Xxxxx One prior to the earlier of five Business Days following such request or 72 hours prior to any Agile shareholder meeting to consider the Transaction;
(ii) if the board of directors of Agile have approved or recommended a transaction other than the transactions contemplated by this Agreement or such other transaction is announced by Agile, while closing preparations are being made up to and including the Closing Date;
(iii) if Agile is in material breach of or material non-compliance with any of its covenants made in this Agreement, which breach or non-compliance individually or in the aggregate causes a Material Adverse Change in respect of Agile or materially impedes the completion of the Transaction, and Agile fails to cure such breach within 10 Business Days after receipt of written notice thereof from Xxxxx One (except that no cure period shall be provided for a breach that, by its nature, cannot be cured and, in no event, shall any cure period extend beyond the Closing Date);
(iv) if this Agreement is terminated by Xxxxx One in accordance with Section 8.1(1)(ii); or
(v) if this Agreement is terminated in accordance with Section 8.1(1)(iii), provided that such termination is not as a result of any action or inaction of Xxxxx One. Domtar For greater certainty, Agile shall not be obligated to make more than one Xxxxx One Termination Fee payment pursuant to under this Section 6.21(a8.2(1), if one or more of the Xxxxx One Termination Fee Events specified above occurs.
(b2) Domtar Notwithstanding any other provision contained in this Agreement respecting expenses and costs and payments thereof, Agile shall reimburse Weyerhaeuser be entitled to a termination fee equal to $100,000 ("Agile Termination Fee"), upon the occurrence of any of the following events (each, an "Agile Termination Fee Event"), which shall be paid by Xxxxx One to Agile within five days from the date of the respective Agile Termination Fee Event:
(i) if the board of directors of Xxxxx One shall have withdrawn, modified, qualified or changed its approval of this Agreement or any of its recommendations to Xxxxx One shareholders or determinations with respect to its support for all the Transaction in a manner adverse to Agile, or shall have resolved to do so prior to the Closing Date, or has failed to publicly reconfirm any such recommendation or determination upon the request of Agile prior to the earlier of five business days following such request or 72 hours prior to any Xxxxx One shareholder meeting to consider the Transaction;
(ii) if the board of directors of Xxxxx One have approved or recommended a transaction other than the transactions contemplated by the Letter of Intent or such other transaction is announced by Xxxxx, while closing preparations are being made up to and including the Closing Date;
(iii) if Xxxxx One is in material breach of or material non-compliance with any of its out-of-pocket expenses actually incurred covenants made in connection with this Agreement, the Original Agreement and the Transactions, subject to a maximum of $10,000,000, if this Agreement is terminated which breach or non-compliance individually or in the circumstances specified aggregate causes a material adverse change in clause respect of Xxxxx One or materially impedes the completion of the Transaction, and Xxxxx One fails to cure such breach within 10 business days after receipt of written notice thereof from Agile (iii) of Section 6.21(a) and the Break Fee is not payable upon the date of such termination. Such reimbursement except that no cure period shall be paid on demand following provided for a breach that, by its nature, cannot be cured and, in no event, shall any cure period extend beyond the Closing Date or such termination.other outside date as set forth in this Agreement);
Appears in 1 contract
Samples: Amalgamation Agreement
Break Fee. (a) If:
(i) Domtar shall terminate this Agreement pursuant to Section 8.01(d)(ii), unless at the time of such termination, an event has occurred and is continuing that has a Newco Material Adverse Effect;
(ii) Weyerhaeuser shall terminate this Agreement pursuant to Section 8.01(c)(ii), unless at the time of such failure to recommend, withdrawal or adverse modification or change, or recommendation of an Acquisition Proposal, an event has occurred and is continuing that has a Newco Material Adverse Effect; or
(iii) either Domtar or Weyerhaeuser shall terminate this Agreement pursuant to Section 8.01(b)(i) or 8.01(b)(ii) in circumstances where Domtar Shareholder Approval has not been obtained at the Domtar Meeting, and (x)(A) in the case of a termination of this Agreement pursuant to Section 8.01(b)(i), a bona fide Acquisition Proposal has been made by 20.1 If any person other than a Weyerhaeuser Party prior to the Domtar Meeting and not withdrawn more than five days prior to the vote of the Domtar Shareholders and holders of Domtar Optionsfollowing events occur, or (B) in the case of a termination of this Agreement pursuant to Section 8.01(b)(ii), a bona fide Acquisition Proposal has been made by any Person other than a Weyerhaeuser Party that is either publicly disclosed or otherwise becomes publicly known prior to or at the time of the Domtar Meeting and that is not withdrawn more than five days prior to the vote of the Domtar Shareholders and holders of Domtar Options, and (y) Domtar enters into an agreement with respect to any Acquisition Proposal, or any Acquisition Proposal is consummated, after the date hereof and prior to the expiration of 12 months following termination of this Agreement, unless at the time of the Domtar Meeting an event has occurred and is continuing that has a Newco Material Adverse Effect; then in any such case Domtar Chaucer shall pay to Weyerhaeuser $62,000,000 (Hanover the “Break Fee”) Fee in immediately available funds to an account designated by Weyerhaeuser. Such payment shall be due (A) in accordance with the provisions of Clause 20.2 and 20.3:
20.1.1 the Scheme or the Offer, as the case may be, is withdrawn or lapses and, before that time, an Alternative Proposal is announced which Alternative Proposal subsequently becomes or is declared wholly unconditional, becomes effective or is otherwise completed before or within 12 months of a termination specified in clause (i), prior to the termination of this Agreement, (B) in the case of a termination specified in clause (ii), within five Business Days after written notice of termination by Weyerhaeuser, or (C) in the case of a termination specified in clause (iii), at or prior to the earlier of the entering into of the agreement and the consummation of the transaction referred to therein; provided, however, that in the event that Domtar has reimbursed Weyerhaeuser for its out-of-pocket expenses pursuant to Section 6.21(b) prior to the date on which the Break Fee Scheme, or the Offer, is payablewithdrawn or lapses; or
20.1.2 whether the Acquisition is being implemented by means of the Scheme or the Offer, then the amount Board of Chaucer do not unanimously and without qualification recommend that Chaucer shareholders vote in favour of the Scheme Resolution and the Chaucer General Meeting Resolutions or accept the Offer, as the case may be, or, having made such a recommendation the Board of Chaucer (or any committee of such Board) at any time withdraw, or adversely modify, or qualify such recommendation or Chaucer or the Chaucer Directors fail to take all appropriate and necessary steps or fail to comply in any material respect with its or their obligations in accordance with the Timetable and in the manner contemplated by this Agreement to implement the Scheme or the Offer, as the case may be; or
20.1.3 the Chaucer General Meeting Resolutions required to implement the Scheme and the Acquisition and/or the Scheme Resolution are not passed by the requisite majorities and the Scheme is subsequently withdrawn, is not implemented or lapses.
20.2 Chaucer shall pay the Break Fee payable shall no later than five (5) Business Days after demand from Hanover which may only be reduced by made after the amount withdrawal, failure to implement or lapse of expenses actually reimbursed by Domtar pursuant to Section 6.21(b). Domtar shall not be obligated to make more than one payment pursuant to this Section 6.21(a).
(b) Domtar shall reimburse Weyerhaeuser for all its out-of-pocket expenses actually incurred in connection with this Agreementthe Scheme or the Offer, the Original Agreement and the Transactions, subject to a maximum of $10,000,000, if this Agreement is terminated or in the circumstances specified set out in clause Clause 20.1.1 after the Alternative Proposal becomes or is declared wholly unconditional, becomes effective or is otherwise completed, as applicable. All sums payable under this Clause 20 shall be paid in the form of an electronic funds transfer for same day value to such person and such bank account or accounts as may be notified by Hanover to Chaucer and shall be paid in full, free from any deduction or withholding whatsoever (iii) of Section 6.21(asave only as may be required by law) and without regard to any lien, right of set-off, counterclaim or otherwise.
20.3 The Parties intend and shall use all reasonable endeavours to secure that the Break Fee is not payable upon treated for VAT purposes as consideration for a taxable supply. If and to the date extent that H.M. Revenue & Customs determine that the Break Fee is consideration for a taxable supply, and that Chaucer (or the representative member of a VAT group of which Chaucer is a member) is chargeable to VAT in respect of such termination. Such reimbursement supply, all or part of which is not recoverable by Chaucer (or such representative member, as appropriate), then (a) the amount payable by Chaucer to Hanover in respect of the Break Fee shall be reduced so that the amount payable, together with any irrevocable VAT arising in respect of the supply for which the payment is consideration, is equal to the Break Fee; and (b) to the extent that Chaucer has already paid on demand following an amount to Hanover in respect of the Break Fee which exceeds the amount described in sub-clause (a) above, Hanover shall repay to Chaucer such terminationamount as will ensure that the aggregate amount paid by Chaucer by way of Break Fee, together with the irrecoverable VAT mentioned in sub-clause (a) above and less the repayment mentioned in this sub-clause (b), is equal to the Break Fee.
20.4 Nothing in this Agreement shall oblige Chaucer to pay any amount which the Panel determines would not be permitted by Rule 21.2 of the Code.
Appears in 1 contract
Samples: Implementation Agreement (Hanover Insurance Group, Inc.)
Break Fee. 11.1 Xxxxxxxx undertakes to pay Aon an amount (aexclusive of VAT, if any) If:
(i) Domtar shall terminate this Agreement pursuant equal to Section 8.01(d)(ii), unless at the time of such termination, an event has occurred and is continuing that has a Newco Material Adverse Effect;
(ii) Weyerhaeuser shall terminate this Agreement pursuant to Section 8.01(c)(ii), unless at the time of such failure to recommend, withdrawal or adverse modification or change, or recommendation of an Acquisition Proposal, an event has occurred and is continuing that has a Newco Material Adverse Effect; or
(iii) either Domtar or Weyerhaeuser shall terminate this Agreement pursuant to Section 8.01(b)(i) or 8.01(b)(ii) in circumstances where Domtar Shareholder Approval has not been obtained at the Domtar Meeting, and (x)(A) in the case of a termination of this Agreement pursuant to Section 8.01(b)(i), a bona fide Acquisition Proposal has been made by any person other than a Weyerhaeuser Party prior to the Domtar Meeting and not withdrawn more than five days prior to the vote one per cent of the Domtar Shareholders and holders of Domtar Options, or Offer Value (B) in the case of a termination of this Agreement pursuant to Section 8.01(b)(ii), a bona fide Acquisition Proposal has been made by any Person other than a Weyerhaeuser Party that is either publicly disclosed or otherwise becomes publicly known prior to or at the time of the Domtar Meeting and that is not withdrawn more than five days prior to the vote of the Domtar Shareholders and holders of Domtar Options, and (y) Domtar enters into an agreement with respect to any Acquisition Proposal, or any Acquisition Proposal is consummated, after the date hereof and prior to the expiration of 12 months following termination of this Agreement, unless at the time of the Domtar Meeting an event has occurred and is continuing that has a Newco Material Adverse Effect; then in any such case Domtar shall pay to Weyerhaeuser $62,000,000 (the “Break Fee”), by way of compensation if the Announcement is made and after such announcement:
11.1.1 the Directors (or any committee thereof) fail to recommend or withdraw, qualify or adversely modify for whatever reason the terms of their recommendation of the Amalgamation (other than as a result of a breach of this Agreement by Aon which is material in immediately available funds the context of the implementation of the Acquisition) or Xxxxxxxx notifies Aon of its decision not to an account designated proceed with the Amalgamation and the Amalgamation subsequently lapses or is not made or is withdrawn;
11.1.2 the Amalgamation subsequently lapses or is withdrawn or is not made and before this time a Superior Proposal is announced, and (although Xxxxxxxx has not withdrawn its recommendation of the Amalgamation) that Superior Proposal subsequently becomes effective, becomes or is declared unconditional in all respects or is otherwise completed; or
11.1.3 the Amalgamation does not become effective because Xxxxxxxx does not comply with its obligations under paragraph 3.2 of this Agreement or Aon terminates this Agreement due to a material breach by WeyerhaeuserXxxxxxxx of its obligations under paragraph 10. Such payment For the purposes of this sub-paragraph 11.1.3, a breach shall be due “material” if (Aapplying the principles which would be expected to be adopted by the Panel by reference to its past determinations of the ability of offerors to invoke the non-satisfaction of conditions in offers over which the Panel has jurisdiction) in it either alone or together with other breaches of paragraph 10 has a material impact on the case of a termination specified in clause (i), prior to Wider Xxxxxxxx Group.
11.2 Xxxxxxxx shall pay the termination of this Agreement, (B) in the case of a termination specified in clause (ii), within five Break Fee by not later than 5 Business Days after written notice receipt of termination a demand by Weyerhaeuser, or (C) Aon following an event rendering the Break Fee payable pursuant to paragraph 11.1.
11.3 All sums payable under this paragraph 11 shall be paid in the case form of a termination specified an electronic funds transfer for same day value to such bank as may be notified by Aon in clause writing to Xxxxxxxx and shall be paid in full free from any deduction or withholding whatsoever (iii)save only as may be required by law) and without regard to any lien, at right of set-off, counterclaim or prior to otherwise.
11.4 The parties consider that the earlier Break Fee is outside the scope of the entering into of the agreement and the consummation of the transaction referred to therein; providedVAT. However, however, that in the event that Domtar has reimbursed Weyerhaeuser for its out-of-pocket expenses pursuant to Section 6.21(b) prior to the date on which HM Revenue & Customs determines that the Break Fee constitutes in whole or in part the consideration for a taxable supply for VAT purposes and Aon (or the representative member of any group of which Aon is payable, then the amount of the Break Fee payable shall be reduced by the amount of expenses actually reimbursed by Domtar pursuant to Section 6.21(b). Domtar shall not be obligated to make more than one payment pursuant to this Section 6.21(a).
(b) Domtar shall reimburse Weyerhaeuser treated as a member for all its out-of-pocket expenses actually incurred in connection with this Agreement, the Original Agreement and the Transactions, subject to a maximum of $10,000,000, if this Agreement is terminated in the circumstances specified in clause (iii) of Section 6.21(a) and the Break Fee is not payable upon the date of such termination. Such reimbursement shall be paid on demand following such termination.VAT
Appears in 1 contract
Samples: Implementation Agreement (Aon Corp)
Break Fee. (a) If, on or before the Closing Date:
(i) Domtar the Purchaser shall terminate this Agreement pursuant to Section 8.01(d)(ii)subsection 12.1(b) (provided that if the Purchaser shall terminate this Agreement pursuant to subsection 12.1(b)(ii) such breach of a covenant shall have been with respect to a failure by the Vendor, unless Vendorco or the Company to perform such covenant in a material respect or the Vendor shall have been aware of an Acquisition Proposal at the time of such termination, an event has occurred ) and is continuing that has a Newco Material Adverse Effect;
(iix) Weyerhaeuser shall terminate this Agreement pursuant to Section 8.01(c)(ii), unless at the time of such failure to recommend, withdrawal or adverse modification or change, or recommendation of an Acquisition Proposal, an event has occurred and is continuing that has a Newco Material Adverse Effect; or
(iii) either Domtar or Weyerhaeuser Proposal shall terminate this Agreement pursuant to Section 8.01(b)(i) or 8.01(b)(ii) in circumstances where Domtar Shareholder Approval has not been obtained at the Domtar Meeting, and (x)(A) in the case of a termination of this Agreement pursuant to Section 8.01(b)(i), a bona fide Acquisition Proposal has have been made or publicly announced by any person other than a Weyerhaeuser Party prior to Person before the Domtar Unitholder Meeting and not withdrawn more than at least five days prior to (5) Business Days before the vote date of the Domtar Shareholders and holders of Domtar Options, Unitholder Meeting or (B) in the case of a termination of this Agreement pursuant to Section 8.01(b)(ii), a bona fide Acquisition Proposal has been made by any Person other than a Weyerhaeuser Party that is either publicly disclosed or otherwise becomes publicly known prior to or at the time of the Domtar Meeting and that is not withdrawn more than five days prior to the vote of the Domtar Shareholders and holders of Domtar Options, and (y) Domtar the Vendor, the Company or any of their Affiliates enters into an agreement with respect to any an Acquisition Proposal, or any an Acquisition Proposal is consummated, after the date hereof and prior to the expiration of 12 twelve months following the termination of this Agreement, unless at the time of the Domtar Meeting an event has such termination a Specified Purchaser Event shall have occurred and is continuing that has continuing;
(ii) (A) the Purchaser shall terminate this Agreement pursuant to subsection 12.1(e)(i) and (x) an Acquisition Proposal shall have been made or publicly announced by any Person before the Unitholder Meeting and not withdrawn at least five (5) Business Days before the date of the Unitholder Meeting or (y) the Vendor, the Company or any of their Affiliates enters into an agreement with respect to an Acquisition Proposal, or an Acquisition Proposal is consummated, after the date hereof and prior to the expiration of twelve months following the termination of this Agreement, or (B) if the Purchaser shall terminate this Agreement pursuant to subsections 12.1(e)(ii) or (iii), unless at the time of such failure to recommend or reconfirm, withdrawal or adverse recommendation or change or recommendation of an Acquisition Proposal, or determination, a Newco Material Adverse EffectSpecified Purchaser Event shall have occurred and is continuing;
(iii) the Vendor shall terminate this Agreement pursuant to subsection 12.1(f), unless at the time of such termination a Specified Purchaser Event shall have occurred and is continuing;
(iv) either the Vendor or the Purchaser shall terminate this Agreement pursuant to subsection 12.1(g), unless at the time of such termination a Specified Purchaser Event shall have occurred and is continuing, and (x) an Acquisition Proposal shall have been made or publicly announced by any Person before the Unitholder Meeting and not withdrawn at least five (5) Business Days before the date of the Unitholder Meeting and (y) the Vendor or the Company or any of their Affiliates enters into an agreement with respect to an Acquisition Proposal, or an Acquisition Proposal is consummated, after the date hereof and prior to the expiration of twelve (12) months following the termination of this Agreement; or
(v) the Purchaser shall terminate this Agreement pursuant to subsection 12.1(j), unless at the time of such termination a Specified Purchaser Event shall have occurred and is continuing; then in any such case Domtar the Company shall pay pay, as liquidated damages, to Weyerhaeuser the Purchaser $62,000,000 (the “Break Fee”) 2,000,000 in immediately available funds to an account designated by Weyerhaeuserthe Purchaser. Such payment shall be due (A) in the case of a termination by the Purchaser specified in clause clauses (i), prior to (ii), (iv) or (v) above, within five (5) Business Days of written notice of termination by the termination of this AgreementPurchaser, and (B) in the case of a termination specified in clause (ii), within five Business Days after written notice of termination by Weyerhaeuser, or (C) in the case of a termination Vendor specified in clause (iii) or a termination by the Vendor specified in clause (iv), prior to or at the time of termination of this Agreement (provided that if any payment under clauses (i), (ii) or (iv) is not otherwise payable unless the circumstances described in subclauses (i)(y), (ii)(y) or (iv)(y) shall have occurred, then such payment shall be due at or prior to the earlier of the entering into of the agreement and the consummation of the transaction referred to therein; provided, however, that in the event that Domtar has reimbursed Weyerhaeuser for its out-of-pocket expenses pursuant to Section 6.21(b) prior to the date on which the Break Fee is payable, then the amount of the Break Fee payable shall be reduced by the amount of expenses actually reimbursed by Domtar pursuant to Section 6.21(b). Domtar shall not be obligated to make more than one payment pursuant to this Section 6.21(a).
(b) Domtar shall reimburse Weyerhaeuser for all its out-of-pocket expenses actually incurred in connection with this Agreement, If (i) the Original Agreement and the Transactions, subject to a maximum of $10,000,000, if Purchaser terminates this Agreement is terminated in pursuant to subsection 12.1(e)(i), (ii) an Acquisition Proposal shall not have been made or publicly announced before the circumstances specified in clause Unitholder Meeting, or if an Acquisition Proposal shall have been made or publicly announced before the Unitholder Meeting it shall have been withdrawn before the Unitholder Meeting and (iii) of Section 6.21(athe Unitholders shall have failed to approve the Unitholder Resolution at the Unitholder Meeting, then the Company shall pay to the Purchaser $500,000.00 as liquidated damages in immediately available funds to an account designated by the Purchaser, payable within two (2) and the Break Fee is not payable upon the date Business Days of such termination.
(c) The parties agree that the payments contained in this Section 7.15 are an integral part of the transactions contemplated by this Agreement and constitute liquidated damages and not a penalty. Such reimbursement For greater certainty, the parties agree that if the Company pays to the Purchaser the amounts required by, and in accordance with, Section 7.15, the Purchaser shall have no other remedy for any breach of this Agreement by the Vendor, Vendorco or the Company. Any payment due under subsection 7.15(a) or 7.15(b) shall be paid on demand following such terminationreduced dollar-for-dollar by any payment previously made under subsection 7.15(b) or Section 12.4.
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