Non-Completion Fee Sample Clauses

Non-Completion Fee. The text of Section 2 "Non-Completion Fee" in the Proxy Agreement shall hereby be deleted in its entirety and replaced with the following language: "Subject to Section 10(b) hereof, upon the earliest to occur of (i) March 25, 2004, if the Transaction Agreement has not been executed and delivered on or before such date, (ii) September 15, 2004, if a definitive proxy statement / prospectus, tender offer or other applicable disclosure document relating to the Transaction (the "Transaction Disclosure Document") has not been mailed to the unitholders of the Partnership, (iii) termination of the Transaction Agreement or (iv) October 29, 2004, (such earliest date, the "Non-Completion Fee Date"), Parent shall promptly (but in no event later than five (5) business days thereafter), elect, in its sole discretion, either (a) to pay to the Selling Unitholders an aggregate sum of $1,000,000 in cash, if permissible under applicable law and Parent's credit agreements, or (b) to purchase from the Selling Unitholders such number of Partnership Units having an aggregate market value on the Non-Completion Fee Date of $100.00, in exchange for the issuance by Parent to the Selling Unitholders of the greater of (x) 105,450 Parent Shares or (y) such number of Parent Shares equal to $1,200,100, determined by dividing $1,200,100 by the Volume Weighted Average Price per Parent Share for the five trading days ending on and including the trading day prior to the Non-Completion Fee Date, which Parent Shares shall be allocated among the Selling Unitholders pro rata (and rounded to the nearest whole number of Parent Shares) based on each Selling Unitholder's Owned Units, and in connection with any such issuance such Selling Unitholders agree to execute customary private placement representation letters at such time (the cash payment and the issuance of Parent Shares referred to in clauses (a) and (b) are herein referred to as the "Non-Completion Fee")."

Non-Completion Fee. (a) The Company shall pay to the Offeror or as Offeror directs in writing as liquidated damages for the Offeror's rights under this Agreement the sum of twenty one million ($21,000,000) (the "Non-Completion Fee") if: (i) this Agreement is terminated in the circumstances set out in Section 8.1(d), 8.1(e), 8.1(f) or 8.1(g); (ii) this Agreement is terminated pursuant to Section 8.1(h) as a result of the Company being in default of any of its covenants or obligations contained in Section 2.5 or Section 6.4 of this Agreement; (iii) on or after the date hereof and prior to the Expiry Time, an Alternative Transaction is publicly announced or any person has publicly announced an intention to make such Alternative Transaction, and such Alternative Transaction either: (A) has been accepted by the Board or Directors; or (B) has not expired, nor been withdrawn nor been publicly abandoned and (x) the Offer is not completed as a result of the Minimum Condition not having been met, and (y) the person or company that made such Alternative Transaction acquires, directly or indirectly, more than 662/3% of the issued and outstanding Shares within 12 months of the date of this Agreement, For greater certainty, the Company shall not be obligated to make more than one payment under this Section 6.3 if one or more of the events specified herein occurs. (b) The Non-Completion Fee shall be due: (i) in the case of the circumstances specified in Section 6.3(a)(i) and 6.3(a)(ii) forthwith (and in any event within three (3) Business Days) following the termination of this Agreement, but prior to or concurrently with termination in the case of a termination pursuant to Sections 8.1(f) or 8.1(g); and (ii) in the case of the circumstances specified in Section 6.3(a)(iii), prior to or concurrently with the date on which the Alternative Transaction is accepted by the Board of Directors or prior to or concurrently with such acquisition of more than 662/3% of the issued and outstanding Shares. Such payment shall be made by the Company to the Offeror in immediately available funds in Vancouver, British Columbia to an account designated by the Offeror; and (c) The Company acknowledges that the amount set out in Section 6.3(a) in respect of the Non-Completion Fee represents liquidated damages which are a genuine pre-estimate of the damages, including opportunity costs, which Offeror will suffer or incur as a result of the event giving rise to such damages and resultant termination of this Agree...

Non-Completion Fee. Company (a) the Board of Directors withdraws or modifies in a manner adverse to the Offeror any of its recommendations or determinations referred to in section 1.2 or resolves to do so prior to the Expiry Time; (b) the Board of Directors accepts or recommends any Acquisition Proposal or causes the Company to enter into any agreement related to any Acquisition Proposal; (c) the Board of Directors fails to reaffirm its unanimous recommendation that Shareholders accept the Offer by press release within a reasonable time after the public announcement or commencement of any Acquisition Proposal and having been requested to do so by the Offeror (or if the Offer is scheduled to expire, prior to the scheduled expiry of the Offer); (d) the Offer is not completed in accordance with the conditions set out in Schedule “B” as a result of the Company being in material default of any of its covenants or obligations contained in section 3.3; (e) the Company terminates this Agreement pursuant to section 6.1(h); or (f) the Minimum Tender Condition in paragraph (a) of Schedule “B” has not been satisfied or waived at the Expiry Time and the Offeror has not elected to extend the Offer and: (i) an Acquisition Proposal has been publicly announced by any person (the “Acquisition Proposal Offeror”), other than the Offeror, prior to the Expiry Time; and (A) the Acquisition Proposal Offeror, or a person acting jointly or in concert with the Acquisition Proposal Offeror (within the meaning of that expression as used in the Applicable Laws) consummates an Acquisition Proposal prior to the expiration of 365 days following termination of this Agreement; or (B) the Company enters into a definitive agreement with respect to an Acquisition Proposal with the Acquisition Proposal Offeror, or a person acting jointly or in concert with the Acquisition Proposal Offeror, prior to the expiration of 270 days following the termination of this Agreement, and thereafter consummates such Acquisition Proposal within 365 days of the termination of this Agreement; (each of the above being a “Fee Event”) then in any such case the Company shall pay to the Offeror $4.1 million (the “Company Break Fee”) in immediately available funds by way of bank draft or wire transfer. Such payment will be due (i) in the case of a Fee Event specified in sections 4.1(a), (b), (c) or (d) within three business days after termination of this Agreement; (ii) in the case of a Fee Event specified in section 4.1(e), prior to the ...

Non-Completion Fee. If at any time after the execution of this Agreement (and provided there is no material breach or non-performance by Hawker of a material provision of this Agreement in any respect): (a) the Board of Directors of Zorin has withdrawn or, in any manner adverse to Hawker, redefined, modified or changed any of its recommendations referred to in Section 2.2, or shall have resolved to do so; (b) any bona fide Take-over Proposal for the Zorin Shares is publicly announced or commenced, and the Board of Directors of Zorin shall have failed to publicly reaffirm and maintain its recommendation of the Offer to Zorin’s shareholders within 2 days after the public announcement or commencement of any such Take-over Proposal; (c) the Board of Directors of Zorin shall have recommended that Zorin’s shareholders deposit their Zorin Shares under, vote in favour of, or otherwise accept, a Take-over Proposal; (d) Zorin shall have entered into any agreement with any person with respect to a Take-over Proposal prior to the Expiry Time of the Offer, excluding a confidentiality agreement entered into in compliance with Section 8.3; or (e) another Take-over Proposal is publicly announced, proposed, offered or made to Zorin’s shareholders or to Zorin prior to the Expiry Time of the Offer, the Offer shall have expired and not been consummated by reason of the Minimum Condition not being satisfied, and such Take-over Proposal has been completed within 365 days of expiry of the Offer, Zorin shall upon the occurrence of any such event and in any event within one Business Day pay to Hawker the amount of $375,000. Such payment shall be made in immediately available funds to an account designated by Hawker. On the date of the earliest of any of the events specified in Sections 8.2(a) to 8.2(e), Zorin shall be deemed to hold such amount in trust for Hawker. Any payment pursuant to Section 8.2 shall be without prejudice to the rights or remedies available to Hawker upon the breach of any provision of this Agreement by Zorin. For the purposes of Section 8.2(b), an announcement by the Board of Directors of Zorin that it does not have all the information necessary to properly evaluate the Take-over Proposal and accordingly is reaffirming and maintaining its recommendation of the Offer pending receipt and analysis of additional information shall not constitute an event within the ambit of Section 8.2(b) hereof or trigger any obligations to make the payment contemplated by this Section, provided th...

Non-Completion Fee. If, at any time after the execution of this Agreement and prior to the termination of this Agreement pursuant to Article 5 (provided there is no material breach or non-performance by PNR of a material provision of this Agreement which would otherwise have entitled NAN to terminate this Agreement), N▇▇ accepts, recommends, approves or enters into, or proposes publicly to accept, recommend, approve or enter into, any agreement with any person to implement a Superior Proposal (the "Non-Completion Payment Event"), then NAN shall pay to PNR $1,900,000 as liquidated damages (the "Non-Completion Fee") in immediately available funds to an account designated by PNR within one Business Day after the occurrence of the Non-Completion Payment Event. Following a Non-Completion Payment Event, but prior to payment of the Non-Completion Fee, NAN shall be deemed to hold such payment in trust for PNR. NAN shall only be obligated to pay the Non-Completion Fee once pursuant to this Section 8.2. The Parties acknowledge and agree that the amounts set out in this Section 8.2 are payments in consideration for the disposition of the rights of the Party entitled to receive such payments under this Section 8.2 and that the amounts set out in this Section 8.2 represent liquidated damages which are a genuine pre-estimate of the damages which PNR will suffer or incur as a result of the event giving rise to such damages and resultant termination of this Agreement, and is not a penalty. NAN hereby irrevocably waives any right it may have to raise as a defence that such liquidated damages are excessive or punitive. The Parties agree that any payment made pursuant to this Section 8.2 is the sole monetary remedy and shall be in full satisfaction of all rights and remedies available to PNR in respect of any prior breach of this Agreement by NAN or N▇▇ ▇▇▇▇▇; provided, however, that nothing herein shall preclude a Party from seeking injunctive relief to restrain any breach or threatened breach of the covenants or agreements set forth in this Agreement or otherwise to obtain specific performance of any of such act, covenant or agreement, without the necessity of posting bond or security in connection therewith.

Non-Completion Fee. Provided that there is no breach or non-performance by UPR or UPRI of a material provision of this Agreement in any material respect, Norcen shall pay to UPRI the sum of $125 million if: (a) the Offer shall have expired and not been consummated by reason of the Minimum Condition not having been satisfied but only if a Superior Take-over Proposal, as a result of which the Board of Directors of Norcen has withdrawn, modified or changed its recommendation regarding the Offer, has been publicly announced and not withdrawn prior to the Expiry Time; or (b) this Agreement has been terminated by UPR pursuant to Section 11.1(e). In the circumstances set forth above Norcen shall pay to UPRI an amount equal to all documented and reasonable out of pocket expenses incurred by UPR and UPRI in making the Offer, including the fees payable to its financial advisors and legal counsel and all fees, costs and expenses incurred in arranging the financing for the Offer which shall not exceed $30 million. Such payments shall be made by Norcen to UPRI within two Business Days of the event giving rise to the payment in immediately available funds to an account designated by UPRI.

Non-Completion Fee. If at any time after the execution of this Agreement (and provided there is no material breach or non-performance by Devon of a material provision of this Agreement in any respect): (a) the Board of Directors of And▇▇▇▇▇ ▇▇s withdrawn or, in any manner adverse to Devon, redefined, modified or changed any of its recommendations or determinations referred to in Section 2.2, or shall have resolved to do so; (b) any bona fide Take-over Proposal for the And▇▇▇▇▇ ▇▇ares is publicly announced or commenced, and the Board of Directors of And▇▇▇▇▇ ▇▇all have failed to publicly reaffirm and maintain its recommendation of the Offer to And▇▇▇▇▇'▇ ▇▇areholders within 10 days after the public announcement or commencement of any such Take-over Proposal; (c) the Board of Directors of And▇▇▇▇▇ ▇▇all have recommended that And▇▇▇▇▇'▇ ▇▇areholders deposit their And▇▇▇▇▇ ▇▇ares under, vote in favour of, or otherwise accept, a Take-over Proposal; (d) And▇▇▇▇▇ ▇▇all have entered into any agreement with any person with respect to a Take-over Proposal prior to the Expiry Time of the Offer, excluding a confidentiality agreement entered into in compliance with Section 8.3; or (e) a Take-over Proposal is publicly announced, proposed, offered or made to And▇▇▇▇▇'▇ ▇▇areholders or to And▇▇▇▇▇ ▇▇ior to the Expiry Time of the Offer and such Take-over Proposal has been completed, And▇▇▇▇▇ ▇▇all upon the occurrence of any such event and in any event within one Business Day pay to Devon the amount of $210 million. Such payment shall be made in immediately available funds to an account designated by Devon. On the date of the earliest of any of the events specified in Sections 8.2(a) to (e), And▇▇▇▇▇ ▇▇all be deemed to hold such amount in trust for Devon. In the event that a Take-over Proposal is publicly announced, proposed, offered or made to holders of And▇▇▇▇▇ ▇▇ares as contemplated by Section 8.2(e), And▇▇▇▇▇ ▇▇rees to deliver to Devon, at least 3 Business Days prior to the scheduled expiry of such Take-over Proposal, an irrevocable letter of credit, in form satisfactory to Devon, acting reasonably, drawable within one Business Day after Devon shall have delivered to the issuing party a written certificate confirming the occurrence of an event specified in Section 8.2(e) or such other form of security as is satisfactory to Devon, acting reasonably. Any payment pursuant to Section 8.2 shall be without prejudice to the rights or remedies available to Devon upon the breach of any provision o...

Non-Completion Fee. If the transactions contemplated hereby to occur on the Second Closing Date have not been completed on or before the date that is six (6) months from the date hereof, (a) the Corporation shall on the first Business Day thereafter deliver and pay to the Purchaser an amount equal to (i) unless the sole reason such completion did not occur is that the condition in section 10 of Schedule E has not been met, One Million ($1,000,000) Dollars plus (ii) in all cases, all costs, expenses and legal or other fees incurred by the Purchaser in connection with the negotiation, settlement and execution of this Agreement and all matters related thereto and all disputes arising in connection therewith, (b) the Purchaser shall have no further obligation to complete the transactions contemplated hereby to occur on the Second Closing Date and (c) the Purchaser shall be entitled to exercise the Put Right pursuant to Section 5 of the certificate attached as Schedule F hereto.

Non-Completion Fee. If either FCF or Teal terminates this agreement under clause 2.4 because the Condition in clause 2.