Common use of Non-Completion Fee Clause in Contracts

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such Alternative Transaction either: (A) has been accepted by the Board or Directors; or (B) has not expired, nor been withdrawn nor been publicly abandoned and (x) the Offer is not completed as a result of the Minimum Condition not having been met, and (y) the person or company that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 Agreement, and is not a penalty. The Company irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive.

Non-Completion Fee. (a) The Company shall pay to the Offeror or as Offeror directs in writing Parent as liquidated damages for the Offeror's Parent’s rights under this Agreement the sum of twenty one $19.5 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 6.3 of this Agreement; (iii) on the Board of Directors fails to disseminate or after file the date hereof and Directors’ Circular or Schedule 14D-9, or any amendment thereto, in accordance with Section 2.4; or (iv) (A) prior to the Expiry Timetermination of this Agreement, an Alternative Transaction is publicly announced announced; (B) an Alternative Transaction is consummated during the period commencing on the date hereof and ending 12 months following the termination of this Agreement, or any person has publicly announced the Board of Directors approves or recommends an intention to make Alternative Transaction during such Alternative Transaction, 12 month period and such Alternative Transaction either: (A) has been accepted by is subsequently consummated at any time thereafter, or the Board or Directors; or (B) has not expired, nor been withdrawn nor been publicly abandoned Company enters into a definitive agreement with respect to an Alternative Transaction during such 12 month period and (x) the Offer such Alternative Transaction is not completed as a result of the Minimum Condition not having been metsubsequently consummated at any time thereafter, and (yC) 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, Effective Time has not occurred. For greater certainty, the Company shall not be obligated to make more than one payment under this Section 6.3 6.2 if one or more of the events specified herein occurs. (b) The Payment of the Non-Completion Competition 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) 5 Business Days) following the termination of this Agreement, but prior to or concurrently with termination in the case of a termination pursuant to Sections Section 8.1(f) or 8.1(g); and (ii) in the case of the circumstances specified in Section 6.3(a)(iii6.2(a)(iv), prior to or concurrently with the date on which consummation of 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 SharesTransaction. Such payment payments 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 Agreement, and is not a penalty. The Company irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitivepayee.

Non-Completion Fee. (a) The Company shall pay to the Offeror or as Offeror directs in writing as liquidated damages for the Offeror's ’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 662/366 2/3% 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 662/366 2/3% 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 Agreement, and is not a penalty. The Company irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive.