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 time of termination of this Agreement by the Company; or (iii) in the case of a Fee Event specified in section 4.1(f), on the day of consummation of the transaction referred to therein. The Company shall not be obligated to make more than one payment pursuant to this section 4.1.
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Non-Completion Fee. Company(a) If at any time after the execution of this Agreement and prior to its termination:
(ai) the Board of Directors withdraws withdraws, modifies or changes, or publicly announces, withdraws, modifies or changes, its recommendations or determinations set forth in Section 2.2(a) in a manner adverse to the Offeror any of its recommendations or determinations referred to in section 1.2 PET or resolves to do so prior to the Expiry Timeor recommends or publicly announces a recommendation that Shareholders accept or vote in favour of another transaction or Acquisition Proposal;
(bii) the Board of Directors accepts recommends or recommends any Acquisition Proposal approves or causes the Company to enter into any agreement related to any publicly announces a recommendation or approval of an Acquisition Proposal;
(ciii) the Board of Directors fails shall have failed to reaffirm its unanimous recommendation that Shareholders accept of the Offer by press news release within a reasonable time three Business Days after the public announcement or commencement of any Acquisition Proposal and having been requested to do so by (or, in the Offeror (or if event that the Offer is shall be scheduled to expireexpire within such three Business Day period, prior to the scheduled expiry of the Offer);
(div) 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 another Acquisition Proposal has been publicly announced by any person (and not withdrawn prior to the “Expiry Time, the Minimum Tender Condition has not been satisfied at the Expiry Time, and such Acquisition Proposal Offeror”), other than is subsequently completed within twelve months of the Offeror, Expiry Time;
(v) Profound enters into any agreement with any Person with respect to an Acquisition Proposal 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
(Bvi) the Company enters into a definitive agreement with respect Agreement is terminated by PET pursuant to an Acquisition Proposal with the Acquisition Proposal OfferorSection 11.1(b)(ii) or (iii), or a person acting jointly or in concert with the Acquisition Proposal Offerorby Profound pursuant to Section 11.1(j), 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 Profound shall pay to the Offeror $4.1 million (the “Company Break Fee”) PET, or as PET otherwise directs, forthwith and in any event within two Business Days after such event, by way of wire transfer of immediately available funds to an account designated by way PET (or such other form of bank draft consideration as the Parties may agree), the sum of $1,250,000 (the "Non-Completion Fee"). As of the moment the earliest of any of the events specified in Sections 8.3(a)(i), (ii), (iii), (iv), (v) or wire transfer. Such payment will (vi) occurs, Profound shall hold such amount in trust for PET.
(b) If Profound does not have sufficient financial resources to pay the Non-Completion Fee, then it shall be due a condition of (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; any Superior Proposal and (ii) in any Acquisition Proposal where Profound or any affiliate has entered into any agreement to support such Acquisition Proposal that the case of a Fee Event specified in section 4.1(e)person making such Acquisition Proposal shall advance or otherwise provide to Profound the cash required for Profound to pay the Non-Completion Fee, which amount shall be so advanced or provided prior to the time of termination of this Agreement by date on which Profound is required to pay the Company; or (iii) in the case of a Fee Event specified in section 4.1(f), on the day of consummation of the transaction referred to therein. The Company shall not be obligated to make more than one payment pursuant to this section 4.1Non-Completion Fee.
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