Break Fee Provision Clause Samples

Break Fee Provision. If: (a) Offeror does not make or withdraws the Offers or elects not to take up and pay for any Shares deposited under the Offers, or this Agreement is terminated by Offeror, as a result of any one of the following (each, a “Triggering Event”): (i) prior to the Transition Date, the Board of Directors withdraws or modifies, or proposes publicly to withdraw or modify, in a manner adverse to Parent or Offeror, the approval of this Agreement or the transactions contemplated hereby or the recommendations referred to in Section 1.1(j) or resolves to do so or recommends or proposes publicly to recommend that Stockholders vote in favour of another transaction; or (ii) prior to the Transition Date, the Board of Directors shall have failed to reaffirm by press release within two Business Days its recommendation to Stockholders that they tender to the Offers (or, if the Offers are scheduled to expire within such two Business Days, prior to the scheduled expiry of the Offers) after the public announcement or commencement of any Acquisition Proposal; or (iii) the Board of Directors recommends or approves or proposes publicly to approve or recommend any Acquisition Proposal; or (iv) the Corporation enters into a Proposed Agreement; or (v) the Corporation breaches in any material respect the provisions of Section 4.2, 4.3 or 5.1; or (vi) an Acquisition Proposal shall have been made and (A) taking into account any revised proposal made by Offeror since receipt of a notice from the Corporation of the existence of a Superior Proposal in accordance with this Agreement, such Superior Proposal remains a Superior Proposal, or (B) Offeror determines not to make a revised proposal as contemplated in Section 5.1 following receipt of a notice from the Corporation of the existence of a Superior Proposal. (b) the Corporation shall have given notice of termination under Section 6.1(c)(v); or

Break Fee Provision. If Hydrogenics does not make the Offer or withdraws the Offer or elects not to take up and pay for any Common Shares deposited under the Offer as a result of any one of the following: (a) prior to the Transition Date, the Board of Directors withdraws, modifies or changes any of its recommendations or determinations regarding the Offer in a manner adverse to Hydrogenics or resolves to do so, other than in accordance with Subsection 6.1(l) of this Agreement; or (b) an Acquisition Proposal is publicly announced, the Offer is not completed as a result of the Minimum Tender Condition not being satisfied, and any Common Shares are acquired under such alternative Acquisition Proposal or an Acquisition Proposal is otherwise completed within twelve months of the date of termination of this Agreement; or (c) the Agreement is terminated by Hydrogenics pursuant to Subsection 6.1(d) or 6.1(e); or (d) the Agreement is terminated as a result of Hydrogenics failing to exercise its right to make an amended Offer pursuant to Subsection 7.1(e); then the Company shall, forthwith after such event, pay to Hydrogenics, by way of certified cheque or wire transfer of immediately available funds, the sum of $3.5 million. For greater certainty, the Company shall not be obligated to make more than one payment under this Section 7.2 if one or more of the events specified therein occurs. Each Party acknowledges and agrees that, notwithstanding any other provision herein, upon payment of the amount of $3.5 million under this Section 7.2, Hydrogenics shall not be entitled to pursue any other remedy to which Hydrogenics may otherwise be entitled, and payment of the $3.5 million under this Section 7.2 shall be in lieu of any damages under any such other remedies and shall constitute payment of liquidated damages which are a genuine estimate of the damages which Hydrogenics would suffer or incur as a result of the event giving rise to such damages and resultant termination of this Agreement, and are not penalties.

Break Fee Provision. (a) If Bidder does not make or withdraws the Offer or elects not to take up and pay for any Common Shares deposited under the Offer solely as a result of any one of the following: (i) prior to the Transition Date, the board of directors of the Corporation withdraws, modifies or changes any of its recommendations or determinations in a manner adverse to Bidder or resolves to do so or recommends that Shareholders accept or vote in favour of another transaction; or (ii) prior to the Transition Date, the board of directors of the Corporation shall have failed to reaffirm its recommendation of the Offer by press statement within 2 business days (or, if the Offer is scheduled to expire within such 2 business days, prior to the scheduled expiry of the Offer) after the public announcement or commencement of any Acquisition Proposal; or (iii) the board of directors of the Corporation recommends an Acquisition Proposal; or (iv) the Offer is not completed as a result of the Minimum Tender Condition not being satisfied or any of the other conditions set out in Schedule C (other than those set out in paragraphs (a), (b), (c), (d), (f) and (g) of Schedule C) not being satisfied and an Acquisition Proposal is completed within twelve months of the date of termination of this Agreement; or (v) the Corporation enters into a Proposed Agreement in accordance with Section 6.1; then the Corporation shall forthwith after such event pay to Bidder, by way of certified cheque or wire transfer of immediately available funds, the sum of $15 million. For greater certainty, (i) the Corporation shall not be obligated to make more than one payment under subsection 6.2(a) if one or more of the events specified therein occurs; and (ii) the sum of $15 million payable pursuant to this subsection 6.1(a) shall be reduced by any payment made pursuant to subsection 6.2(b). (b) In the event that this Agreement is terminated pursuant to subsection 9.1(b) or 9.1(d) hereof, the Corporation shall pay Bidder the sum of $3 million to reimburse Bidder for all of its out-of-pocket costs and expenses in connection with the Offer.