Break Payment. 12.1 By way of compensation for any loss suffered by Telecity in connection with the preparation and negotiation of the Transaction, this Agreement and any other document and announcement relating to the Transaction, Equinix shall pay the Break Payment in the event that, following publication of the Announcement in accordance with Clause 2.1:
(A) on or prior to the Longstop Date, Equinix invokes (and is permitted by the Panel to invoke) the Pre-Condition; or
(B) on the Longstop Date, the Pre-Condition has not been satisfied or waived by Equinix, (each a “Break Payment Event”).
12.2 Equinix shall pay the Break Payment by electronic bank transfer to a bank account designated by Telecity within 7 days of the occurrence of the Break Payment Event.
12.3 The parties acknowledge and agree that, at the date of this Agreement, it is not possible to ascertain the amount of the overall loss that Telecity would incur as a result of the Break Payment Event and the Break Payment represents a genuine pre-estimate by the parties of the amount of the overall loss that Telecity would incur as a result of the Break Payment Event.
12.4 The parties intend and shall use all reasonable endeavours to secure that the Break Payment is not treated for VAT purposes as consideration for a taxable supply. If, however, the Break Payment is treated by Her Majesty’s Revenue & Customs or any other tax authority, in whole or in part, as consideration for a taxable supply, then the amount of the Break Payment shall be regarded as inclusive of VAT and Equinix shall be under no obligation to pay to TelecityGroup any additional amount in respect of such VAT.
12.5 In the event that the Break Payment is paid in accordance with this Clause 12 and this Agreement is terminated in accordance with its terms, other than in the case of fraud, Telecity’s right to receive the Break Payment shall be the sole and exclusive remedy of Telecity against Equinix for any and all losses and damages incurred or suffered in connection with this Agreement and the transactions contemplated by this Agreement. In no event shall Equinix be required to pay the Break Payment more than once or pay more than one Break Payment.
Break Payment. 7.1 By way of compensation for any loss suffered by Rexam in connection with the preparation and negotiation of the Acquisition, this Agreement and any other document relating to the Acquisition, Ball undertakes that on the occurrence of any of the events listed below (each, a “Break Payment Event”), Ball shall pay or shall procure the payment by a member of its Group (provided that such member belongs outside the European Economic Area for VAT purposes and is not required by Law to make any deductions or withholdings on account of tax from a Break Payment) to Rexam an amount (the “Break Payment”) in cash, in pounds, equal to, as applicable:
7.1.1 £302,000,000 (being seven per cent of the Offer Value) in the event that on or prior to the Long Stop Date:
(a) the Regulatory Pre-condition or any Regulatory Condition shall not have been satisfied or waived by Ball or Bidco;
(b) Ball or Bidco invoke and are permitted by the Panel to invoke the Regulatory Pre-condition or any Regulatory Condition; or
(c) a Ball Adverse Recommendation Change has occurred citing as a reason for the withdrawal or modification constituting the Ball Adverse Recommendation Change the requirement for an actual or potential Antitrust Remedy;
7.1.2 £129,000,000 (being three per cent of the Offer Value) in the event that on or prior to the Shareholder Approval Long Stop Date:
(a) a Ball Adverse Recommendation Change has occurred citing a reason other than the reason referred to in sub-clause 7.1.1(c) and the Ball Shareholders Approval has not been obtained at the Ball Shareholders Meeting; or
(b) the Ball Shareholders Meeting has not occurred;
7.1.3 £43,000,000 (being one per cent of the Offer Value) in the event that on or prior to the Shareholder Approval Long Stop, both:
(a) a Ball Adverse Recommendation Change has not occurred; and
(b) the Ball Shareholders Approval has not been obtained at the Ball Shareholders Meeting;
1.1 to 7.1.3 (inclusive), provided, and only to the extent, that:
(1) at the time a Break Payment Event occurs, a termination pursuant to sub-clauses 13.1.2, 13.1.3(ii), 13.1.4 or 13.1.7 has not occurred; and
(2) the relevant Break Payment Event has not been directly caused by Rexam’s failure to provide (or to cause to be provided) to Ball or its Advisers assistance and information reasonably requested by them for the purpose of satisfying the Regulatory Pre-Condition, a Regulatory Condition or obtaining the Proxy Approval, which information relates to Rexam, is in th...
Break Payment. If this Agreement is terminated by the Bidder pursuant to Clause 8.2(i)(a), (b), (c) or (d), or by the Target pursuant to Clause 8.2(ii)(e), the Target shall pay to the Bidder a break payment by way of compensation for any loss or damage (including, but not limited to, incurring costs and expenses, lost opportunity costs, business dislocation, reputational harm or adverse market reaction) that may be suffered by the Bidder (the “Break Payment”) equal to:
(a) two million seven hundred thousand euro (EUR 2,700,000) if this Agreement is terminated by the Bidder pursuant to Clause 8.2(i)(a), (b) or (c); or
(b) five million four hundred thousand euro (EUR 5,400,000) if this Agreement is terminated by the Bidder pursuant to Clause 8.2(i)(d) or by the Target pursuant to Clause 8.2(ii)(e).
Break Payment. If the Agreement is validly terminated in pursuant to clause 12.1(e), the Buyers shall pay to the Sellers a break payment of USD $2,500,000 plus the Sellers’ reasonable and documented expenses of outside legal counsel, such fee and expenses shall be payable within 5 days of demand. In the event the Buyers makes the break payment pursuant to this Clause 12.3 it shall be the Sellers’ sole and exclusive remedy against the Buyers or its Affiliates for any purpose arising under this Agreement. Each Party acknowledges that the break payment described in this clause 12.3 is not intended to be a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Sellers in the circumstances in which such fee is due and payable, for the efforts and resources expended and opportunities forgone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precision.]
Break Payment. 11.1 By way of compensation for any loss suffered by BG in connection with the preparation and negotiation of the Acquisition, this Agreement and any other document relating to the Acquisition, subject to Clause 11.2, Shell shall pay, or shall procure the payment by a member of the Shell Group of, the Break Payment to BG in the event that, following the publication of the Announcement in accordance with Clause 2.1:
(A) on or prior to the Long Stop Date, the board of directors of Shell:
(i) withdraws the Shell Board Recommendation;
(ii) publicly announces its intention not to include the Shell Board Recommendation in the Shell Circular when it is sent to Shell shareholders or its intention not to send the Shell Circular to Shell shareholders; or
(iii) does not include the Shell Board Recommendation in the Shell Circular when it is sent to Shell shareholders, and, in any such case, BG or Shell exercises its right to terminate this Agreement pursuant to Clause 13.1(D);
(B) on or prior to the Long Stop Date, Shell invokes (and is permitted by the Panel to invoke) any Pre-Condition and / or any Regulatory Condition; or
(C) on the Long Stop Date, any Pre-Condition and / or any Regulatory Condition has not been satisfied or waived by Shell, (each a “Break Payment Event”).
Break Payment. 7.1 Amerisur shall pay to GeoPark the Break Payment by way of compensation for GeoPark in the event that an Independent Competing Transaction is announced in accordance with Rule 2.7 of the Takeover Code prior to the lapse or (with the Panel's consent) withdrawal of the Takeover Offer and that Independent Competing Transaction subsequently becomes or is declared unconditional in all respects or is completed or becomes effective.
7.2 The Break Payment shall be paid no later than 5 Business Days after the date on which the completion and/or effectiveness of the Independent Competing Transaction is announced.
7.3 Payment of the Break Payment shall be made in the form of an electronic funds transfer for same day value to such bank account as chosen by GeoPark and shall be paid in full without any deduction or withholding and without regard to any lien, right of set-off counterclaim or otherwise.
Break Payment. This Agreement shall automatically terminate if any of the resolutions required to be approved by the shareholders of Premier Foods plc in order for the transactions contemplated by this Agreement to become effective is not duly passed at the EGM. In the event of such termination, the Purchasers agree to pay to the Sellers by way of compensation for any loss suffered an amount (which shall be exclusive of VAT, if applicable, except to the extent not recoverable by way of credit or repayment by the Purchasers or any group of which the Purchasers are members) equal to £7.5 million (the Break Payment). If the Break Payment becomes payable, the Purchasers shall pay it in accordance with clause 25 (Payments) within 5 Business Days after the termination occurs.
Break Payment. 9.1 Target undertakes to pay to Offeror in accordance with this Clause 9 (Break Payment) a sum that is equal to £38,000,000 (the “Break Payment”), by way of compensation, if the Announcement is released and after such release a Competing Offer becomes effective, or is declared or becomes unconditional in all respects (the “Payment Event”).
9.2 On or before the date falling five (5) Business Days following the Announcement, Target agrees to pay a sum equal to the Break Payment into an escrow account in the joint names of Offeror and Target by way of security for its obligations under Clause 9.1 under irrevocable instructions that an amount equal to the Break Payment shall be automatically released to Offeror upon the occurrence of the Payment Event. Any payment in discharge of such obligations shall be made within 10 Business Days after the date of the Payment Event.
9.3 Offeror and Target agree that the irrevocable instructions in respect of the escrow account referred to in Clause 9.2 above shall also provide that, provided a Payment Event has not already occurred, all amounts standing to the credit of the escrow account shall be automatically released to Target upon either: (i) the later of the Acquisition lapsing or being withdrawn in accordance with its terms (provided that such lapse is not as a result of a Competing Offer becoming or being declared wholly unconditional) and all Competing Offers having lapsed or been withdrawn in accordance with their terms; or (ii) the Acquisition becoming or being declared wholly unconditional.
9.4 All sums payable under Clause 9.1 above shall be paid in full free from any deduction or withholding whatsoever (save only as may be required by law) and without regard to any lien, right of set-off, counterclaim or otherwise.
9.5 The parties intend that the Break Payment, being compensatory in nature, is not consideration for a taxable supply for VAT purposes. Unless and until Offeror notifies Target that, acting in good faith, Offeror considers the Break Payment to be consideration for a taxable supply (a “VAT Notification”), the parties shall use all reasonable endeavours to secure that the Break Payment is not treated as consideration for a taxable supply for VAT purposes. If the Offeror serves a VAT Notification or the Break Payment is determined by any Tax Authority to be consideration in whole or part for a taxable supply for VAT purposes then if Offeror is required to account for VAT in respect of that supply Targ...
Break Payment. 11.1 By way of compensation for any loss suffered by BG in connection with the preparation and negotiation of the Acquisition, this Agreement and any other document relating to the Acquisition, subject to Clause 11.2, Shell shall pay, or shall procure the payment by a member of the Shell Group of, the Break Payment to BG in the event that, following the publication of the Announcement in accordance with Clause 2.1:
(A) on or prior to the Long Stop Date, the board of directors of Shell:
(i) withdraws the Shell Board Recommendation;
(ii) publicly announces its intention not to include the Shell Board Recommendation in the Shell Circular when it is sent to Shell shareholders or its intention not to send the Shell Circular to Shell shareholders; or
(iii) does not include the Shell Board Recommendation in the Shell Circular when it is sent to Shell shareholders, and, in any such case, BG or Shell exercises its right to terminate this Agreement pursuant to Clause 13.1(D); 21
(B) on or prior to the Long Stop Date, Shell invokes (and is permitted by the Panel to invoke) any Pre-Condition and / or any Regulatory Condition; or
(C) on the Long Stop Date, any Pre-Condition and / or any Regulatory Condition has not been satisfied or waived by Shell, (each a “Break Payment Event”).
11.2 No Break Payment shall be payable if:
(A) at the time the relevant Break Payment Event occurs, this Agreement has been terminated pursuant to Clause 13.1(A), (B), (C), (E), (F) or (G), save where:
(i) this Agreement has terminated pursuant to Clause 13.1(E) as a result of any Pre-Condition or Regulatory Condition: (a) being invoked by Shell (b) becoming incapable of satisfaction by the Long Stop Date and Shell stating that it will not be waived or (c) not being capable of being waived and becoming incapable of satisfaction by the Long Stop Date; or
(ii) this Agreement has terminated pursuant to Clause 13.1(G) and the Scheme (or the Offer as the case may be) has been withdrawn or lapsed as a result of a Pre-Condition or Regulatory Condition being: (a) invoked by Shell; (b) becoming incapable of satisfaction by the Long Stop Date and Shell stating that it will not be waived or (c) not being capable of being waived and becoming incapable of satisfaction by the Long Stop Date;
(B) the Break Payment Event has been caused to a material extent by BG’s breach of its obligations under Clauses 3.1 to 3.6 or Clause 5.4 of this Agreement, provided that Shell shall have notified BG in writing promptl...
Break Payment. 11.1 The Company undertakes that if:
(a) a Board Adverse Recommendation Change occurs (resulting in the termination of this Agreement pursuant to Clause 14.1(c)(iii)); and/or
(b) a Competing Proposal is made and the Acacia Directors recommend such Competing Proposal or state publicly that it is their intention to recommend such Competing Proposal, the Company shall pay to Eagle an amount equal to US$1,000,000 in cash, in each case by way of compensation for any loss suffered by Eagle in connection with the preparation and negotiation of the Scheme.
11.2 Any payment required to be made by the Company to Eagle under Clause 11.1 shall be made in US Dollars by electronic transfer of immediately available funds to a bank account in the name of Eagle of which Eagle gives the Company at least three prior Business Days’ written notice from time to time.
11.3 The amount payable under Clause 11.1 is exclusive of any value added Tax (if any).
