Common use of Non-Completion Fee Clause in Contracts

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. If, (a) If at any time after the execution date 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 Purchaser of a material any provision of this Agreement which would otherwise have entitled NAN 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 terminate 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 AgreementAgreement pursuant to Section 13.1(f), N▇▇ accepts, recommends, approves or enters into, or proposes publicly ; (ii) this Agreement is terminated by Addax pursuant to Section 13.1(g) in order to permit Addax to accept, recommend, approve or recommend a Superior Acquisition Proposal or to enter intointo a binding support, any acquisition, arrangement or other similar agreement with any person to implement 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 "Non-Completion Payment Event")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 NAN Addax shall pay or cause to PNR $1,900,000 as liquidated damages (the "Non-Completion Fee") be paid to Purchaser by wire transfer in immediately available funds to an account designated by PNR 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 one five Business Day after Days following the date of occurrence of the Non-Completion Payment Event. Following a Non-Completion Payment Event, but prior earlier event giving rise to payment of the Non-Completion FeeFee 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, NAN shall be deemed to hold such payment in trust for PNR. NAN shall only be obligated to pay the not more than one Non-Completion Fee once shall be payable by Addax under this Agreement. (b) If this Agreement is terminated by Addax pursuant to this Section 8.213.1(k), then Purchaser shall pay or cause to be paid to Addax by wire transfer in immediately available funds to an account designated by Addax an amount equal to $300,000,000 (the “Break-Up Fee”). 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 Such 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 made within five Business Days of such act, covenant or agreement, without the necessity of posting bond or security in connection therewithtermination.