Non-Completion Fee. 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) June 25, 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) September 30, 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 $500,000 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) 61,300 Parent Shares or (y) such number of Parent Shares equal to $600,100, determined by dividing $600,100 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. 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. (a) If at any time after the date of this Agreement (and provided there is no material breach or non-performance by Purchaser of any provision of this Agreement which breach or non-performance has not been waived by Addax) any of the following occurs:
(i) the Addax Board shall or shall resolve to: (1) fail to make its recommendations or determinations referred to in Section 2.2(a)(ii); or (2) withdraw, modify, qualify or change its recommendation referred to in Section 2.2(a)(ii) in a manner adverse to Purchaser; or (3) fail to publicly reaffirm its recommendation of the Offer within five Business Days of the public announcement of a bona fide Acquisition Proposal which the Addax Board has determined is not a Superior Acquisition Proposal and, in any of the foregoing circumstances, Purchaser terminates this Agreement pursuant to Section 13.1(f);
(ii) this Agreement is terminated by Addax pursuant to Section 13.1(g) in order to permit Addax to accept, approve or recommend a Superior Acquisition Proposal or to enter into a binding support, acquisition, arrangement or other similar agreement with any person which sets out the terms of, and provides the support of Addax for, a Superior Acquisition Proposal (other than a confidentiality agreement referred to in Section 5.2(c)); or
(iii) if prior to the Expiry Time (i) an Acquisition Proposal (for the purposes of this paragraph read such that all references to “more than 20%” in the definition of Acquisition Proposal are references to “100%”) is publicly announced and made; (ii) the Offer is not completed as a result of the Minimum Condition not being satisfied by the Expiry Time and Purchaser terminates this Agreement as a consequence thereof; and (iii) within 12 months after the date of this Agreement, such Acquisition Proposal is completed; then Addax shall pay or cause to be paid to Purchaser by wire transfer in immediately available funds to an account designated by Purchaser an amount of $300,000,000 (the “Non-Completion Fee”). Such payment shall be made, in the case of Section 4.1(a)(i) or Section 4.1(a)(iii), within five Business Days following the date of occurrence of the earlier event giving rise to payment of the Non-Completion Fee and in the case of Section 4.1(a)(ii) prior to or concurrently with the termination of this Agreement by Addax pursuant to Section 13.1(g). For greater certainty, not more than one Non-Completion Fee shall be payable by Addax under this Agreement.
(b) If this Agreement is ...
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. 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 either FCF or Teal terminates this agreement under clause 2.4 because the Condition in clause 2.
Non-Completion Fee. If at any time after the execution of this Agreement:
(a) the Board of Directors of Chieftain has withdrawn or, in any manner adverse to Offeror, redefined, modified or changed any of its recommendations or determinations referred to in Section 2.2(a) prior to the Expiry Time of the Offer, or shall have resolved to do so;
(b) any bona fide Take-over Proposal for the Chieftain Shares is publicly announced or commenced, and the Board of Directors of Chieftain shall have failed to
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 Andxxxxx xxs 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 Andxxxxx Xxares is publicly announced or commenced, and the Board of Directors of Andxxxxx xxall have failed to publicly reaffirm and maintain its recommendation of the Offer to Andxxxxx'x xxareholders within 10 days after the public announcement or commencement of any such Take-over Proposal;
(c) the Board of Directors of Andxxxxx xxall have recommended that Andxxxxx'x xxareholders deposit their Andxxxxx Xxares under, vote in favour of, or otherwise accept, a Take-over Proposal;
(d) Andxxxxx xxall 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 Andxxxxx'x xxareholders or to Andxxxxx xxior to the Expiry Time of the Offer and such Take-over Proposal has been completed, Andxxxxx xxall 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), Andxxxxx xxall 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 Andxxxxx Xxares as contemplated by Section 8.2(e), Andxxxxx xxrees 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.
