Common use of Company Termination Payment Event Clause in Contracts

Company Termination Payment Event. In the event that: (a) this Agreement is terminated by either Party pursuant to Section 7.2(b)(i) and prior to such termination a Company Acquisition Proposal (other than a Company Superior Proposal for which a Company Change in Recommendation has occurred) is or has been publicly announced, proposed, disclosed, offered or made by any Person other than Triple Flag or its affiliates and not withdrawn and within twelve months following the date of such termination: (i) the Company Board recommends any Company Acquisition Proposal which is subsequently consummated at any time thereafter (whether or not within such twelve-month period); (ii) the Company enters into a binding definitive agreement in respect of any Company Acquisition Proposal which is subsequently consummated at any time thereafter (whether or not within such twelve-month period); or (iii) any Company Acquisition Proposal is consummated; provided that for purposes of this Section 6.3(a), the term “Company Acquisition Proposal” shall have the meaning ascribed to such term in Section 1.1 except that each reference to “20%” therein shall be deemed to be a reference to “50%”; or (b) this Agreement is terminated by Triple Flag pursuant to Section 7.2(b)(i) and at any time prior to such termination a Company Change in Recommendation has occurred; or (c) this Agreement is terminated by Triple Flag pursuant to Section 7.2(c)(ii); or (d) this Agreement is terminated by Triple Flag pursuant to Section 7.2(c)(iii), then the Company shall pay to Triple Flag in any of the circumstances set forth in Sections 6.3(b), 6.3(c) or 6.3(d), at the time of the termination of this Agreement, and, in the circumstances set forth in Section 6.3(a), within one day following the completion of such Company Acquisition Proposal, an amount in cash equal to US$24,000,000 (the “Company Termination Payment”), in immediately available funds. In no event shall the Company be obligated to pay the Company Termination Payment on more than one occasion. The Company hereby acknowledges that the Company Termination Payment is a payment of liquidated damages which are a genuine pre-estimate of the damages which Triple Flag will suffer or incur as a result of the event giving rise to such damages and the resultant non-completion of the Arrangement and are not penalties. The Company hereby irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive. Upon receipt of payment of the Company Termination Payment by the Company, Triple Flag shall have no further claim against the Company in respect of the failure to complete the Arrangement, provided that nothing herein shall preclude Triple Flag from seeking injunctive relief to restrain any breach or threatened breach by the Company of any of its obligations hereunder or otherwise to obtain specific performance without the necessity of posting bond or security in connection therewith.

Company Termination Payment Event. In Termination of this Agreement in each of the event thatfollowing circumstances will constitute a “Company Termination Payment Event”: (a) this Agreement is terminated by either Party the Buyer pursuant to Section 7.2(b)(i8.02(b) and prior (but not including a termination by the Buyer pursuant to such termination a Company Acquisition Proposal (other than a Company Superior Proposal for which a Section 8.02(b)(i) in circumstances where the Company Change in Recommendation has occurred) is or has been publicly announced, proposed, disclosed, offered or made by any Person other than Triple Flag or its affiliates resulted from the occurrence of a Buyer Material Adverse Effect and not withdrawn and within twelve months following the date of such termination: (i) the Company Board recommends any Company Acquisition Proposal which is subsequently consummated at any time thereafter (whether or not within such twelve-month periodhas complied with Section 7.01(g)(iii)); (ii) the Company enters into a binding definitive agreement in respect of any Company Acquisition Proposal which is subsequently consummated at any time thereafter (whether or not within such twelve-month period); or (iii) any Company Acquisition Proposal is consummated; provided that for purposes of this Section 6.3(a), the term “Company Acquisition Proposal” shall have the meaning ascribed to such term in Section 1.1 except that each reference to “20%” therein shall be deemed to be a reference to “50%”; or (b) this Agreement is terminated by Triple Flag either the Buyer or the Company pursuant to Section 7.2(b)(i8.02(d) and if at any such time prior the Buyer was permitted to such terminate this Agreement pursuant to Section 8.02(b) (but not including a termination a by the Buyer pursuant to Section 8.02(b)(i) in circumstances where the Company Change in Recommendation resulted from the occurrence of a Buyer Material Adverse Effect and the Company has occurred; orcomplied with Section 7.01(g)(iii)); (c) this Agreement is terminated by Triple Flag the Company pursuant to Section 7.2(c)(ii8.02(g); or (d) this Agreement is terminated by Triple Flag either the Buyer or the Company pursuant to Section 7.2(c)(iii8.02(d) or Section 8.02(e) hereof and: (i) following the date hereof and prior to such termination, a Company Acquisition Proposal shall have been made to the Company and made known to the Company Shareholders generally or shall have been made directly to the Company Shareholders generally or any Person shall have publicly announced an intention to make a Company Acquisition Proposal (a “Pending Company Acquisition Proposal”); and (ii) within 365 days following the date of such termination: (A) a Company Acquisition Proposal is consummated or effected (provided such Company Acquisition Proposal is the same as the Pending Company Acquisition Proposal); or (B) the Company or one or more of the Company Subsidiaries, directly or indirectly, in one or more transactions, enters into a contract in respect to a Company Acquisition Proposal (whether or not such Company Acquisition Proposal is the same as the Pending Company Acquisition Proposal) and such Company Acquisition Proposal is later consummated or effected (whether or not such Company Acquisition Proposal is later consummated or effected within 365 days of such termination). For the purposes of this Section 7.05(d), then all references to “20%” in the definition of “Company Acquisition Proposal” in Section 1.01 shall be deemed to be references to “50%”; (e) this Agreement is terminated by the Buyer pursuant to Section 8.02(i); or (f) this Agreement is terminated by the Buyer pursuant to Section 8.02(k). (g) Upon the occurrence of a Company Termination Payment Event, the Company shall pay to Triple Flag the Buyer an amount in any cash (a “Company Termination Payment”) equal to (i) $2,000,000, in the case of a Company Termination Payment Event other than those set forth in Section 7.05(e) or Section 7.05(f), or (ii) $1,000,000, in the case of a Company Termination Payment Event set forth in Section 7.05(e) or Section 7.05(f), in immediately available funds in consideration for the disposition of the Buyer’s rights under this Agreement. In the circumstances set forth in Sections 6.3(bSection 7.05(a), 6.3(c) or 6.3(dSection 7.05(b), at or above, the time Company Termination Payment will be paid within two (2) Business Days of the termination of this Agreement, ; and, in the circumstances set forth in Section 6.3(a)7.05(d) above, the Company Termination Payment will be paid within one day two (2) Business Days following the completion of such Company Acquisition Proposal, an amount in cash equal to US$24,000,000 (the “. The Company Termination Payment”), in immediately available funds. In no event shall the Company not be obligated to pay the Company Termination Payment on make more than one occasionpayment pursuant to this Section 7.05. The Company hereby acknowledges that the agreements contained in this Section 7.05 are an integral part of the transactions contemplated in this Agreement and that, without those agreements, the Buyer would not enter into this Agreement, and that the Company Termination Payment is a payment in consideration for the disposition of liquidated damages which are the Buyer’s rights under this Agreement and is a genuine pre-estimate of the damages which Triple Flag that the Buyer will suffer or incur as a result of the event giving rise to such damages and the resultant non-completion of the Arrangement in the circumstances in which the Company Termination Payment is payable, that such payment is not for lost profits or a penalty, and are that the Company shall not penalties. take any position inconsistent with the foregoing. (h) The Company hereby irrevocably waives any right it may have to raise as a defence that any such liquidated damages are Company Termination Payment is excessive or punitive. Upon receipt termination of payment of this Agreement as permitted under Section 8.02 under circumstances where the Buyer is entitled to the Company Termination Payment by and the CompanyCompany Termination Payment is paid in full, Triple Flag the Buyer shall have no further claim against the Company at law or in respect equity or otherwise and in any such case it shall not seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the failure to complete Company or the ArrangementCompany Subsidiaries or any of their respective directors, officers, employees, partners, managers, members, shareholders or affiliates in connection with this Agreement or the transactions contemplated hereby; provided however, that nothing herein shall preclude Triple Flag the Buyer from seeking injunctive relief to restrain any breach or threatened breach by the Company of any of its obligations hereunder or otherwise to obtain specific performance without the necessity of posting bond or security in connection therewith.

Company Termination Payment Event. In Termination of this Agreement in each of the event thatfollowing circumstances will constitute a “Company Termination Payment Event”: (a) this Agreement is terminated by either Party the Buyer pursuant to Section 7.2(b)(i8.02(b) and prior (but not including a termination by the Buyer pursuant to such termination a Company Acquisition Proposal (other than a Company Superior Proposal for which a Section 8.02(b)(i) in circumstances where the Company Change in Recommendation has occurred) is or has been publicly announced, proposed, disclosed, offered or made by any Person other than Triple Flag or its affiliates resulted from the occurrence of a Buyer Material Adverse Effect and not withdrawn and within twelve months following the date of such termination: (i) the Company Board recommends any Company Acquisition Proposal which is subsequently consummated at any time thereafter (whether or not within such twelve-month periodhas complied with Section 7.01(g)(iii)); (ii) the Company enters into a binding definitive agreement in respect of any Company Acquisition Proposal which is subsequently consummated at any time thereafter (whether or not within such twelve-month period); or (iii) any Company Acquisition Proposal is consummated; provided that for purposes of this Section 6.3(a), the term “Company Acquisition Proposal” shall have the meaning ascribed to such term in Section 1.1 except that each reference to “20%” therein shall be deemed to be a reference to “50%”; or (b) this Agreement is terminated by Triple Flag either the Buyer or the Company pursuant to Section 7.2(b)(i8.02(d) and if at any such time prior the Buyer was permitted to such terminate this Agreement pursuant to Section 8.02(b) (but not including a termination a by the Buyer pursuant to Section 8.02(b)(i) in circumstances where the Company Change in Recommendation resulted from the occurrence of a Buyer Material Adverse Effect and the Company has occurred; orcomplied with Section 7.01(g)(iii)); (c) this Agreement is terminated by Triple Flag the Company pursuant to Section 7.2(c)(ii8.02(g); or (d) this Agreement is terminated by Triple Flag either the Buyer or the Company pursuant to Section 7.2(c)(iii8.02(d) or Section 8.02(e) hereof and: (i) following the date hereof and prior to such termination, a Company Acquisition Proposal shall have been made to the Company and made known to the Company Shareholders generally or shall have been made directly to the Company Shareholders generally or any Person shall have publicly announced an intention to make a Company Acquisition Proposal (a “Pending Company Acquisition Proposal”); and (ii) within 365 days following the date of such termination: (A) a Company Acquisition Proposal is consummated or effected (provided such Company Acquisition Proposal is the same as the Pending Company Acquisition Proposal); or (B) the Company or one or more of the Company Subsidiaries, directly or indirectly, in one or more transactions, enters into a contract in respect to a Company Acquisition Proposal (whether or not such Company Acquisition Proposal is the same as the Pending Company Acquisition Proposal) and such Company Acquisition Proposal is later consummated or effected (whether or not such Company Acquisition Proposal is later consummated or effected within 365 days of such termination). For the purposes of this Section 7.05(d), then all references to “20%” in the definition of “Company Acquisition Proposal” in Section 1.01 shall be deemed to be references to “50%”; (e) this Agreement is terminated by the Buyer pursuant to Section 8.02(i); or (f) this Agreement is terminated by the Buyer pursuant to Section 8.02(k). (g) Upon the occurrence of a Company Termination Payment Event, the Company shall pay to Triple Flag the Buyer an amount in any cash (a “Company Termination Payment”) equal to (i) $2,000,000, in the case of a Company Termination Payment Event other than those set forth in Section 7.05(e) or Section 7.05(f), or (ii) $1,000,000, in the case of a Company Termination Payment Event set forth in Section 7.05(e) or Section 7.05(f), in immediately available funds in consideration for the disposition of the Buyer’s rights under this Agreement. In the circumstances set forth in Sections 6.3(bSection 7.05(a), 6.3(c) or 6.3(dSection 7.05(b), at or above, the time Company Termination Payment will be paid within two (2) Business Days of the termination of this Agreement, ; and, in the circumstances set forth in Section 6.3(a)7.05(d) above, the Company Termination Payment will be paid within one day two (2) Business Days following the completion of such Company Acquisition Proposal, an amount in cash equal to US$24,000,000 (the “. The Company Termination Payment”), in immediately available funds. In no event shall the Company not be obligated to pay the Company Termination Payment on make more than one occasion. The Company hereby acknowledges that the Company Termination Payment is a payment of liquidated damages which are a genuine pre-estimate of the damages which Triple Flag will suffer or incur as a result of the event giving rise pursuant to such damages and the resultant non-completion of the Arrangement and are not penalties. The Company hereby irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive. Upon receipt of payment of the Company Termination Payment by the Company, Triple Flag shall have no further claim against the Company in respect of the failure to complete the Arrangement, provided that nothing herein shall preclude Triple Flag from seeking injunctive relief to restrain any breach or threatened breach by the Company of any of its obligations hereunder or otherwise to obtain specific performance without the necessity of posting bond or security in connection therewith.this Section