Common use of Inducement Fee Clause in Contracts

Inducement Fee. 10.1 Subject to Clause 10.4, Charter shall pay the Break Payment to Bidco if: (A) following the release of the Announcement, a Competing Proposal is announced, whether under Rule 2.4 or Rule 2.5 of the Code or otherwise, before the Acquisition lapses or is withdrawn; and (B) such Competing Proposal or any other Competing Proposal announced during the Offer Period subsequently becomes or is declared wholly unconditional or is otherwise completed or if implemented by way of a scheme of arrangement, becomes effective. 10.2 The Break Payment referred to in Clause 10.1 shall be payable as follows: (A) if the Competing Proposal is implemented by way of a scheme of arrangement, prior to such Scheme becoming effective; (B) if the Competing Proposal is implemented by way of takeover offer, prior to the date on which such Competing Proposal becomes or is declared wholly unconditional; or (C) otherwise, on the earlier of the expiry of the Offer Period and the Business Day falling 5 Business Days prior to such Competing Proposal being completed. 10.3 Without prejudice to its obligations pursuant to Clause 10.1 but subject to Clause 10.4, Charter shall pay the Competing Proposal Payment to Bidco if: (A) the Scheme Document, containing a Board Recommendation, is not posted to Charter Shareholders within 28 days of the Announcement (or such longer period as the Panel shall permit for the posting of such document) unless such failure is caused by a default of Colfax or Bidco, such payment to be made within 5 Business Days following the earlier of the Long Stop Date and expiry of the Offer Period; (B) following posting of the Scheme Document, the Charter Directors recommend a Competing Proposal or (for any reason whatsoever) withdraw, qualify or adversely modify their recommendation to accept, or vote in favour of, the Acquisition or such recommendation ceases to be unanimous, such payment to be made within 5 Business Days of the expiry of the Offer Period; (C) Charter shall issue any scheme document in respect of a Competing Proposal or the Charter Directors or any member of the Charter Group (or their respective representatives) shall otherwise take any steps to implement any Competing Proposal, such payment to be made within 5 Business Days of the expiry of the Offer Period; (D) Charter makes any changes to the Timetable, extension of time, adjournment, postponement or reconvention of either of the Meetings if such action itself as a procedural matter would, or would reasonably be expected to, prevent the Scheme (assuming for these purposes the requisite majorities being obtained at the Meetings) from becoming effective prior to the Long Stop Date, such payment to be made within 5 Business Days of the expiry of the Offer Period, 10.4 The obligation of Charter to make any Relevant Payment pursuant to Clause 10.1 or Clause 10.3 shall immediately cease and determine: (A) where the Acquisition becomes or is declared wholly unconditional or otherwise becomes effective; or (B) if, following the announcement of a Competing Proposal, the Acquisition lapses or is withdrawn (save in circumstances where the Panel has agreed that Bidco may invoke a condition to the Acquisition or may lapse or withdraw the Acquisition other than in reliance on a Condition relating to a Clearance or aCondition relating to a material adverse change not occasioned by any action of Charter). 10.5 The Relevant Payment shall be paid by no later than the last date for payment of such sum pursuant to Clause 10.1, 10.2 or 10.3 (as the case may be) and shall be made in immediately available funds (without any deduction or withholding and without regard to any lien, right of set-off, counter-claim or otherwise, except as required by Law) to Colfax’s bank pursuant to details which shall be notified in writing to Charter by no later than three Business Days after the event as a result of which the Relevant Payment becomes payable. 10.6 Without prejudice to the obligation of Charter to make payment of the Relevant Payment on the date set out in Clause 10.5, the parties consider, and shall use all reasonable endeavours to secure, that the Relevant Payment will be outside the scope of VAT and will not for VAT purposes be treated as consideration for a taxable supply. If, however, the Relevant Payment is determined by Her Majesty's Revenue & Customs or the Irish Revenue Commissioners or any other tax authority to be in whole or in part the consideration for a taxable supply for VAT purposes then: (A) if the Relevant Payment is determined by HM Revenue & Customs or the Irish Revenue Commissioners or any other applicable tax authority to be consideration for a taxable supply in respect of which Colfax (or the representative member of any VAT group of which Colfax is a member) is liable to account for VAT then: (i) if and to the extent that such VAT is recoverable by Charter (or the representative member of any VAT group of which Charter is a member) by repayment or credit, the amount of the Relevant Payment shall be increased to take account of such recoverable VAT, such that (A) the Relevant Payment (including any amount in respect of VAT); less (B) an amount equal to any VAT which Charter (or such representative member) is entitled to recover by credit or repayment, shall be equal to the amount that the Relevant Payment would have been in the absence of this Clause 10.6; and/or (ii) if and to the extent that such VAT is irrecoverable by Charter (or such representative member) then no additional amount shall be paid in respect of such VAT; and (B) if under a reverse charge mechanism the Relevant Payment is determined by HM Revenue & Customs or the Irish Revenue Commissioners or such other tax authority (as the case may be) to be consideration for a taxable supply in respect of which Charter (or the representative member of any VAT group of which Charter is a member) is liable to account for VAT then, to the extent that such VAT is not recoverable by Charter (or the representative member of any VAT group of which Charter is a member) by repayment or credit, the amount of the Relevant Payment shall be reduced to take account of such irrecoverable VAT, such that (A) the Relevant Payment; plus (B) an amount equal to the amount of such irrecoverable VAT, shall be equal to the amount that the Relevant Payment would have been in the absence of this Clause 10.5. 10.7 Such adjusting payment as may be required to be made by Charter to give effect to Clause 10.6(A) above shall be made five Business Days after the date on which the determination by HM Revenue & Customs orthe Irish Revenue Commissioners or such other applicable tax authority has been communicated by Colfax to Charter (together with such evidence of it as is reasonable in the circumstances to provide). If and to the extent that the Relevant Payment is determined by HM Revenue & Customs or the Irish Revenue Commissioners or such other applicable tax authority to be consideration for a taxable supply in respect of which Colfax (or the representative member of any VAT group of which Colfax is a member) is liable to account for VAT, Colfax (or the representative member of any VAT group of which Colfax is a member) shall promptly issue a valid VAT invoice to Charter in respect of that supply. 10.8 If, following payment of any amount under this Clause 10 it subsequently transpires that the amounts taken into account as recoverable or irrecoverable VAT of Charter for the purposes of calculating the quantum of such payment were incorrect, the parties shall make such adjusting payments between themselves as will place them in the position they would have been in had the correct amounts of recoverable or irrecoverable VAT of Charter been taken into account. 10.9 Nothing in this Agreement shall oblige Charter to pay any amount (i) which the Panel determines would not be permitted by Rule 21.2 of the Code; (ii) if (but only to the extent that) the payment of such amount would otherwise be unlawful; or (iii) if (but only to the extent that) such payment would, when aggregated with any prior payment pursuant to this Clause 10, otherwise exceed £15,275,000. The parties agree that if the Panel shall determine that the payment of any amount payable pursuant to this Clause 10 would not be permitted by Rule 21.2, the amount payable shall for the purposes of paragraph sub-paragraph (i) above be reduced to the maximum amount that would be permitted to be paid pursuant to Rule 21.2 of the Code.

Appears in 1 contract

Samples: Implementation Agreement (Colfax CORP)

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Inducement Fee. 10.1 Subject 11.1 As an inducement for Offeror agreeing to Clause 10.4the release of the Announcement and for committing resources towards implementation of the Transaction, Charter Offeree undertakes that on the occurrence of an Inducement Fee Payment Event (as defined below), Offeree shall pay to Offeror the Break Inducement Fee. 11.2 An Inducement Fee Payment to Bidco Event shall be if: (Aa) following the release Offeror makes an Announcement in accordance with Rule 2.5 of the AnnouncementCode, which is recommended by the Board of Offeree, and prior to the Scheme or, as the case may be, Takeover Offer lapsing or being withdrawn, a Competing Proposal is announced, whether third party makes an announcement under Rule 2.4 or Rule 2.5 of the Code of an offer (whether by scheme of arrangement or otherwise, before takeover offer) for the Acquisition lapses or is withdrawn; and (B) such Competing Proposal whole or any material part of the issued and to be issued share capital of the Offeree, whether or not subject to any pre-condition (“Third Party Offer”), (which term shall include any extended or revised Third Party Offer), which shall include any other Competing Proposal announced during proposed takeover or merger transaction however effected between or in relation to Offeree or any member of the Offer Period subsequently becomes Offeree Group, and any person (other than Offeror or is declared wholly unconditional BidCo or is otherwise completed any person acting in concert with Offeror or BidCo in accordance with the Code) and the Transaction does not become effective or, if implemented by way of a scheme of arrangementTakeover Offer, becomes effective. 10.2 The Break Payment referred to does not become or is not declared unconditional in Clause 10.1 shall be payable as follows:all respects; or (Ab) Offeror makes an Announcement in accordance with Rule 2.5 of the Code, which is recommended by the Board of Offeree, and (i) if the Competing Proposal Transaction is to be implemented by way of a scheme Takeover Offer, one or more of arrangement, prior to such Scheme becoming effective;the Board of Offeree subsequently withdraw or adversely modify their favorable recommendation of the Takeover Offer; and (Bii) if the Competing Proposal Takeover Offer does not become or is not declared unconditional in all respects; or (c) Offeror makes an Announcement in accordance with Rule 2.5 of the Code which is recommended by the Board of Offeree and the Transaction is to be implemented by way of takeover offerScheme, prior to the date on which such Competing Proposal becomes or is declared wholly unconditional; or (C) otherwise, on the earlier of the expiry of the Offer Period and the Business Day falling 5 Business Days prior Board of Offeree fails to such Competing Proposal being completedtake all steps reasonably appropriate and necessary to implement the Transaction. 10.3 Without prejudice to its obligations pursuant to Clause 10.1 but subject to Clause 10.4, Charter 11.3 Offeree shall pay the Competing Proposal Payment Inducement Fee to Bidco if: (A) the Scheme Document, containing a Board Recommendation, is not posted to Charter Shareholders Offeror within 28 days of the Announcement (or such longer period as the Panel shall permit for the posting of such document) unless such failure is caused by a default of Colfax or Bidco, such payment to be made within 5 Business Days following the earlier of the Long Stop Date and expiry of the Offer Period; (B) following posting of the Scheme Document, the Charter Directors recommend a Competing Proposal or (for any reason whatsoever) withdraw, qualify or adversely modify their recommendation to accept, or vote in favour of, the Acquisition or such recommendation ceases to be unanimous, such payment to be made within 5 ten Business Days of the expiry occurrence of the Offer Period;Inducement Fee Payment Event together with interest at the rate of 3 per cent per annum above the base rate at the relevant time of Barclays Bank Plc calculated on a daily basis from the date that the Inducement Fee Payment Event occurs to the date that Offeree actually makes payment to Offeror. (C) Charter 11.4 Offeror intends, and shall issue use reasonable endeavours to secure, that the Inducement Fee is not treated for VAT purposes as consideration for a taxable supply. If, however, the Inducement Fee is treated for VAT purposes in whole or part as consideration for a taxable supply by any scheme document tax authority in respect of a Competing Proposal which Offeror (or the Charter Directors or any representative member of the Charter Group group of which Offeror is a member) is liable to account for VAT, then Offeror shall issue a valid invoice to Offeree in respect of that supply and Offeree shall (or their respective representativesshall procure that the representative member of the VAT group of which Offeree is a member shall) use its reasonable endeavours to obtain any available refund or credit in respect of such VAT. If and to the extent that such VAT is recoverable (whether by way of credit or refund) by Offeree (or the representative member of the group of which Offeree is a member) the amount of the Inducement Fee (inclusive of amounts in respect of VAT) shall otherwise take be recoverable (whether by way of credit or refund) by Offeree (or the representative member of the group of which Offeree is a member) and, in satisfaction thereof, a sum equal to any steps amount so recovered shall be paid to implement any Competing Proposal, such payment to be made Offeror within 5 five Business Days of the expiry making that recovery (whether by way of the Offer Period; (D) Charter makes any changes to the Timetable, extension of time, adjournment, postponement credit or reconvention of either of the Meetings if such action itself as a procedural matter would, or would reasonably be expected to, prevent the Scheme (assuming for these purposes the requisite majorities being obtained at the Meetings) from becoming effective prior to the Long Stop Date, such payment to be made within 5 Business Days of the expiry of the Offer Period, 10.4 The obligation of Charter to make any Relevant Payment pursuant to Clause 10.1 or Clause 10.3 shall immediately cease and determine: (A) where the Acquisition becomes or is declared wholly unconditional or otherwise becomes effective; or (B) if, following the announcement of a Competing Proposal, the Acquisition lapses or is withdrawn (save in circumstances where the Panel has agreed that Bidco may invoke a condition to the Acquisition or may lapse or withdraw the Acquisition other than in reliance on a Condition relating to a Clearance or aCondition relating to a material adverse change not occasioned by any action of Charterrefund). 10.5 The Relevant Payment 11.5 Any sums payable under this Agreement shall be paid by no later than the last date for payment of such sum pursuant to Clause 10.1, 10.2 or 10.3 (as the case may be) and shall be made in immediately available funds (full without any deduction or withholding and without regard to any lien, right of set-off, counter-claim counterclaim or otherwise, except as required by Law) to Colfax’s bank pursuant to details which shall be notified in writing to Charter by no later than three Business Days after the event as a result of which the Relevant Payment becomes payable. 10.6 Without prejudice to the obligation of Charter to make payment of the Relevant Payment on the date set out in Clause 10.5, the parties consider, and shall use all reasonable endeavours to secure, that the Relevant Payment will be outside the scope of VAT and will not for VAT purposes be treated as consideration for a taxable supply. If, however, the Relevant Payment is determined by Her Majesty's Revenue & Customs or the Irish Revenue Commissioners or any other tax authority to be in whole or in part the consideration for a taxable supply for VAT purposes then: (A) if the Relevant Payment is determined by HM Revenue & Customs or the Irish Revenue Commissioners or any other applicable tax authority to be consideration for a taxable supply in respect of which Colfax (or the representative member of any VAT group of which Colfax is a member) is liable to account for VAT then: (i) if and to the extent that such VAT is recoverable by Charter (or the representative member of any VAT group of which Charter is a member) by repayment or credit, the amount of the Relevant Payment shall be increased to take account of such recoverable VAT, such that (A) the Relevant Payment (including any amount in respect of VAT); less (B) an amount equal to any VAT which Charter (or such representative member) is entitled to recover by credit or repayment, shall be equal to the amount that the Relevant Payment would have been in the absence of this Clause 10.6; and/or (ii) if and to the extent that such VAT is irrecoverable by Charter (or such representative member) then no additional amount shall be paid in respect of such VAT; and (B) if under a reverse charge mechanism the Relevant Payment is determined by HM Revenue & Customs or the Irish Revenue Commissioners or such other tax authority (as the case may be) to be consideration for a taxable supply in respect of which Charter (or the representative member of any VAT group of which Charter is a member) is liable to account for VAT then, to the extent that such VAT is not recoverable by Charter (or the representative member of any VAT group of which Charter is a member) by repayment or credit, the amount of the Relevant Payment shall be reduced to take account of such irrecoverable VAT, such that (A) the Relevant Payment; plus (B) an amount equal to the amount of such irrecoverable VAT, shall be equal to the amount that the Relevant Payment would have been in the absence of this Clause 10.5. 10.7 Such adjusting payment as may be required to be made by Charter to give effect to Clause 10.6(A) above shall be made five Business Days after the date on which the determination by HM Revenue & Customs orthe Irish Revenue Commissioners or such other applicable tax authority has been communicated by Colfax to Charter (together with such evidence of it as is reasonable in the circumstances to provide). If and to the extent that the Relevant Payment is determined by HM Revenue & Customs or the Irish Revenue Commissioners or such other applicable tax authority to be consideration for a taxable supply in respect of which Colfax (or the representative member of any VAT group of which Colfax is a member) is liable to account for VAT, Colfax (or the representative member of any VAT group of which Colfax is a member) shall promptly issue a valid VAT invoice to Charter in respect of that supply. 10.8 If, following payment of any amount under this Clause 10 it subsequently transpires that the amounts taken into account as recoverable or irrecoverable VAT of Charter for the purposes of calculating the quantum of such payment were incorrect, the parties shall make such adjusting payments between themselves as will place them in the position they would have been in had the correct amounts of recoverable or irrecoverable VAT of Charter been taken into account. 10.9 11.6 Nothing in this Agreement shall oblige Charter Offeree to pay any amount (iincluding, but not limited to, damages) which the Panel determines would not be permitted by Rule 21.2 of the Code; (ii) if (but only to the extent that) the payment of such amount would otherwise be unlawful; or (iii) if (but only to the extent that) such payment would, when aggregated with any prior payment pursuant to this Clause 10, otherwise exceed £15,275,000. The parties agree that if the Panel shall determine that the payment of any amount payable pursuant to this Clause 10 would not be permitted by Rule 21.2, the amount payable shall for the purposes of paragraph sub-paragraph (i) above be reduced to the maximum amount that would be permitted to be paid pursuant to Rule 21.2 of the Code.

Appears in 1 contract

Samples: Transaction Agreement (Websense Inc)

Inducement Fee. 10.1 Subject 7.1 In consideration of the considerable time and effort put in by Bidder and its advisers in preparation of the Offer, and as an inducement and pre-condition to Clause 10.4Bidder agreeing to announce the Offer, Charter shall Offeree hereby agrees to pay to Bidder the Break Payment to Bidco Inducement Fee if: (A) 7.1.1 following the release publication of the AnnouncementPress Announcement in accordance with clause 2.1, and before the Scheme or the Offer (as applicable) lapses, is withdrawn, terminates or otherwise fails or (with the consent of the Panel) is not made, a Competing Proposal is announcedannounced by a Third Party and subsequently becomes unconditional in all respects and the Scheme does not become effective or, whether under Rule 2.4 or if Bidder has issued a Rule 2.5 announcement in respect of the Code an Offer, that Offer lapses, is withdrawn, terminates, or otherwise, before the Acquisition lapses otherwise fails or is withdrawn; and (B) such Competing Proposal or any other Competing Proposal announced during the Offer Period subsequently becomes or is declared wholly unconditional or is otherwise completed or if implemented by way of a scheme of arrangement, becomes effective. 10.2 The Break Payment referred to in Clause 10.1 shall be payable as follows: (A) if the Competing Proposal is implemented by way of a scheme of arrangement, prior to such Scheme becoming effectivenot made; (B) if 7.1.2 the Competing Proposal is implemented by way of takeover offerTarget Directors do not give, prior to the date on which such Competing Proposal becomes or is declared wholly unconditional; or (C) otherwise, on the earlier of the expiry of the Offer Period and the Business Day falling 5 Business Days prior to such Competing Proposal being completed. 10.3 Without prejudice to its obligations pursuant to Clause 10.1 but subject to Clause 10.4, Charter shall pay the Competing Proposal Payment to Bidco if: (A) the Scheme Document, containing a Board Recommendation, is not posted to Charter Shareholders within 28 days of the Announcement (or such longer period as the Panel shall permit for the posting of such document) unless such failure is caused by a default of Colfax or Bidco, such payment to be made within 5 Business Days following the earlier of the Long Stop Date and expiry of the Offer Period; (B) following posting of the Scheme Document, the Charter Directors recommend a Competing Proposal or (for any reason whatsoever) withdraw, qualify or adversely modify their the board recommendation as set out in clause 3.7 to accept, clause 3.9 (as applicable) or vote in favour of, the Acquisition agree or such recommendation ceases resolve to be unanimous, such payment to be made within 5 Business Days of the expiry of the Offer Period; (C) Charter shall issue any scheme document in respect of a Competing Proposal or the Charter Directors or any member of the Charter Group (or their respective representatives) shall otherwise take any steps to implement any Competing Proposal, such payment to be made within 5 Business Days of the expiry of the Offer Period; (D) Charter makes any changes to the Timetable, extension of time, adjournment, postponement or reconvention of either of the Meetings if such action itself as a procedural matter would, or would reasonably be expected to, prevent the Scheme (assuming for these purposes the requisite majorities being obtained at the Meetings) from becoming effective prior to the Long Stop Date, such payment to be made within 5 Business Days of the expiry of the Offer Period, 10.4 The obligation of Charter to make any Relevant Payment pursuant to Clause 10.1 or Clause 10.3 shall immediately cease and determine: (A) where the Acquisition becomes or is declared wholly unconditional or otherwise becomes effective; or (B) if, following the announcement of recommend a Competing Proposal, the Acquisition lapses or is withdrawn (save other than in circumstances where Target validly terminates this Agreement in accordance with clause 10.1.1, 10.1.3 or 10.1.6 or where the Panel Scheme has agreed that Bidco may invoke a condition not become effective due to non-fulfilment of the Regulatory Conditions; or 7.1.3 the Acquisition is being implemented by way of the Scheme, and the resolutions to be proposed at the Court Meeting and the GM have been passed by the requisite majorities, the Target Directors do not, except in accordance with clause 3.4.10, seek the Court Order approving the Scheme or may lapse the Court Order approving the Capital Reduction (having used reasonable endeavours to comply with the Timetable) or withdraw do not file the Acquisition other than in reliance on a Condition relating Court Orders, together with the minute of the Capital Reduction, with the Registrar of Companies (having used reasonable endeavours to a Clearance or aCondition relating to a material adverse change not occasioned by any action of Chartercomply with the Timetable). 10.5 The Relevant Payment 7.2 Any amount payable pursuant to clause 7.1 shall be paid by no later than the last date for payment of such sum pursuant to Clause 10.1, 10.2 or 10.3 (as the case may be) and shall be made in immediately available funds (without any deduction or withholding withholding, save only as required by law, and without regard to any lien, right of set-off, counter-claim consideration or otherwise, except as required ) by Law) telegraphic transfer in immediately available funds to Colfax’s a bank pursuant to details which shall be account nominated by Bidder and notified in writing to Charter by Target for such purpose no later than three five Business Days after the event as a result of which the Relevant Payment becomes payable. 10.6 Without prejudice to the obligation of Charter to make payment any of the Relevant Payment on the date circumstances or actions triggering payment set out in Clause 10.5, clause 7.1 shall occur. 7.3 Target can only ever pay the parties consider, and shall use all reasonable endeavours to secure, that the Relevant Payment will be outside the scope of VAT and will not for VAT purposes be treated as consideration for a taxable supply. If, however, the Relevant Payment is determined by Her Majesty's Revenue & Customs or the Irish Revenue Commissioners or Inducement Fee once. 7.4 If any other tax authority to be in whole determines that sums payable under clause 7.1 constitute all or in part of the consideration for a taxable supply made by Bidder to Target for VAT purposes then: (A) if the Relevant Payment and VAT is determined by HM Revenue & Customs or the Irish Revenue Commissioners or any other applicable tax authority to be consideration becomes chargeable on that supply for a taxable supply in respect of which Colfax Bidder (or the representative member of any VAT group of which Colfax Bidder is a member) is liable to account for VAT thento such tax authority: 7.4.1 Target shall (ior shall procure that the representative member of the VAT group of which Target is a member shall) if and use its reasonable endeavours to obtain any available refund or credit in respect of such VAT; and 7.4.2 the Inducement Fee shall be increased by an amount equal to the extent amount of that such VAT is recoverable by Charter in respect of which Target (or the representative member of any VAT group of which Charter Target is a member) by repayment or credit, the amount of the Relevant Payment shall be increased to take account of such recoverable VAT, such that (A) the Relevant Payment (including any amount in respect of VAT); less (B) an amount equal to any VAT which Charter (or such representative member) is entitled to recover by credit or repayment, shall be equal to the amount that the Relevant Payment would have been in the absence of this Clause 10.6; and/or (ii) if and to the extent that such VAT is irrecoverable by Charter (or such representative member) then no additional amount shall be paid in respect of such VAT; and (B) if under a reverse charge mechanism the Relevant Payment is determined by HM Revenue & Customs or the Irish Revenue Commissioners or such other repayment from any tax authority (as determined by Target, or the case may be) to be consideration for a taxable supply relevant representative member of the VAT group, acting reasonably). For the avoidance of doubt the Inducement Fee is inclusive of any amounts in respect of which Charter VAT that would not be able to be recovered by Target in accordance with clause 7.4.1. 7.5 Target acknowledges and confirms that: 7.5.1 the Target Directors, having taken appropriate independent legal and financial advice, believe the arrangements set out in this clause 7 will promote the success of Target for the benefit of its members as a whole; 7.5.2 the Target Directors have considered the net assets of Target (or as at the representative member of any VAT group of which Charter is a member) is liable to account for VAT then, to the extent that such VAT is not recoverable by Charter (or the representative member of any VAT group of which Charter is a member) by repayment or credit, the amount of the Relevant Payment shall be reduced to take account of such irrecoverable VAT, such that (A) the Relevant Payment; plus (B) an amount equal to the amount of such irrecoverable VAT, shall be equal to the amount that the Relevant Payment would have been in the absence date of this Clause 10.5. 10.7 Such adjusting payment as may be required to be made by Charter to give effect to Clause 10.6(AAgreement) above shall be made five Business Days after the date on which the determination by HM Revenue & Customs orthe Irish Revenue Commissioners or such other applicable tax authority has been communicated by Colfax to Charter (together with such evidence of it as is reasonable in the circumstances to provide). If and to the extent that the Relevant Payment is determined by HM Revenue & Customs or the Irish Revenue Commissioners or such other applicable tax authority to be consideration for a taxable supply in respect of which Colfax (or the representative member of any VAT group of which Colfax is a member) is liable to account for VAT, Colfax (or the representative member of any VAT group of which Colfax is a member) shall promptly issue a valid VAT invoice to Charter in respect of that supply. 10.8 If, following payment of any amount under this Clause 10 it subsequently transpires that the amounts taken into account as recoverable or irrecoverable VAT of Charter for the purposes of calculating section 152(2) of the quantum of such payment were incorrect1985 Act and have concluded that the arrangement to pay the Inducement Fee does not reduce, to a material extent, the parties shall make net assets for the purposes of section 152(1)(a)(iv) of the 1985 Act; and 7.5.3 such adjusting payments between themselves as will place them in the position they would arrangements have been in had approved by the correct amounts Panel pursuant to Rule 21.2 of recoverable or irrecoverable VAT of Charter been taken into accountthe Code. 10.9 7.6 Nothing in this Agreement shall oblige Charter the Target to pay any amount (i) pursuant to this clause 7: 7.6.1 which the Panel determines would not be permitted by Rule 21.2 of the Code; (ii) if (but only to the extent that) the payment of such amount would otherwise be unlawful; or (iii) if (but only to the extent that) such payment would, when aggregated with any prior payment pursuant to this Clause 10, otherwise exceed £15,275,000. The parties agree or 7.6.2 that if the Panel shall determine that the payment of any amount payable pursuant to this Clause 10 would is not be permitted by Rule 21.2, the amount payable shall for the purposes of paragraph sub-paragraph (i) above be reduced to the maximum amount that would be permitted to be paid without the prior approval of Target Shareholders pursuant to Rule 21.2 LR 10.2.7R of the CodeListing Rules of the UK Listing Authority. 7.7 If the Inducement Fee has been paid by Target in accordance with this clause 7, Bidder acknowledges that it shall have no further claim against Target (including in respect of accrued rights) under this Agreement.

Appears in 1 contract

Samples: Implementation Agreement (Parexel International Corp)

Inducement Fee. 10.1 Subject 8.1 As an inducement to Clause 10.4Manitowoc to commit time and personnel to the Acquisition, Charter shall the Company undertakes to Manitowoc that it will pay to Manitowoc the Break Payment to Bidco if: (A) following Inducement Fee by way of compensation in the release event that the Acquisition is announced for the purposes of the Announcement, a Competing Proposal is announced, whether under Rule 2.4 or Rule 2.5 of the Code on a recommended basis and, after such announcement: 8.1.1 the Directors do not unanimously and without qualification recommend shareholders to vote in favour of the Scheme and the General Meeting Resolutions (or otherwise, before if applicable to accept the Offer) or they (or any committee of the Directors) at any time withdraw or adversely modify or qualify their recommendation to shareholders to vote in favour of the Scheme and/or the General Meeting Resolutions (or if applicable to accept the Offer) or they (or any committee of the Directors) at any time decide not to proceed with the Scheme; or 8.1.2 a Third Party Transaction is announced prior to the Acquisition lapses lapsing or is being withdrawn; and (B) such Competing Proposal or any other Competing Proposal announced during the Offer Period , which Third Party Transaction subsequently becomes or is declared wholly unconditional or is otherwise completed or if implemented by way of a scheme of arrangement, becomes effective. 10.2 The Break Payment referred to in Clause 10.1 shall be payable as follows: (A) if the Competing Proposal is implemented by way of a scheme of arrangement, prior to such Scheme becoming effective; (B) if the Competing Proposal is implemented by way of takeover offer, prior to the date on which such Competing Proposal becomes or is declared wholly unconditional; or (C) otherwise, on the earlier of the expiry of the Offer Period and the Business Day falling 5 Business Days prior to such Competing Proposal being completed. 10.3 Without prejudice to its obligations pursuant to Clause 10.1 but subject to Clause 10.4, Charter 8.2 The Company shall pay the Competing Proposal Payment to Bidco if: Inducement Fee due under Clause 8.1.1 (Aif it becomes payable) the Scheme Document, containing a Board Recommendation, is not posted to Charter Shareholders within 28 days of the Announcement (or such longer period as the Panel shall permit for the posting of such document) unless such failure is caused by a default of Colfax or Bidco, such payment to be made within 5 Business Days following the earlier of the Long Stop Date and expiry of the Offer Period; (B) following posting of the Scheme Document, the Charter Directors recommend a Competing Proposal or (for any reason whatsoever) withdraw, qualify or adversely modify their recommendation to accept, or vote in favour of, the Acquisition or such recommendation ceases to be unanimous, such payment to be made within 5 Business Days of the expiry of the Offer Period; (C) Charter shall issue any scheme document in respect of a Competing Proposal or the Charter Directors or any member of the Charter Group (or their respective representatives) shall otherwise take any steps to implement any Competing Proposal, such payment to be made within 5 Business Days of the expiry of the Offer Period; (D) Charter makes any changes to the Timetable, extension of time, adjournment, postponement or reconvention of either of the Meetings if such action itself as a procedural matter would, or would reasonably be expected to, prevent the Scheme (assuming for these purposes the requisite majorities being obtained at the Meetings) from becoming effective prior to the Long Stop Date, such payment to be made within 5 Business Days of the expiry of the Offer Period, 10.4 The obligation of Charter to make any Relevant Payment pursuant to Clause 10.1 or Clause 10.3 shall immediately cease and determine: (A) where the Acquisition becomes or is declared wholly unconditional or otherwise becomes effective; or (B) if, following the announcement of a Competing Proposal, the Acquisition lapses or is withdrawn (save in circumstances where the Panel has agreed that Bidco may invoke a condition to the Acquisition or may lapse or withdraw the Acquisition other than in reliance on a Condition relating to a Clearance or aCondition relating to a material adverse change not occasioned by any action of Charter). 10.5 The Relevant Payment shall be paid by no later than the last date for payment of such sum pursuant to Clause 10.1, 10.2 or 10.3 (as the case may be) and shall be made in immediately available funds (without any deduction or withholding and without regard to any lien, right of set-off, counter-claim or otherwise, except as required by Law) to Colfax’s bank pursuant to details which shall be notified in writing to Charter by no not later than three Business Days after the event as a result of which the Relevant Payment becomes payable. 10.6 Without prejudice to the obligation of Charter to make payment of the Relevant Payment on the date set out in Clause 10.5, the parties consider, and shall use all reasonable endeavours to secure, that the Relevant Payment will be outside the scope of VAT and will not for VAT purposes be treated as consideration for a taxable supply. If, however, the Relevant Payment is determined by Her Majesty's Revenue & Customs or the Irish Revenue Commissioners or any other tax authority to be in whole or in part the consideration for a taxable supply for VAT purposes then: (A) if the Relevant Payment is determined by HM Revenue & Customs or the Irish Revenue Commissioners or any other applicable tax authority to be consideration for a taxable supply in respect of which Colfax (or the representative member of any VAT group of which Colfax is a member) is liable to account for VAT then: (i) if and to the extent that such VAT is recoverable by Charter (or the representative member of any VAT group of which Charter is a member) by repayment or credit, the amount of the Relevant Payment shall be increased to take account of such recoverable VAT, such that (A) the Relevant Payment (including any amount in respect of VAT); less (B) an amount equal to any VAT which Charter (or such representative member) is entitled to recover by credit or repayment, shall be equal to the amount that the Relevant Payment would have been in the absence of this Clause 10.6; and/or (ii) if and to the extent that such VAT is irrecoverable by Charter (or such representative member) then no additional amount shall be paid in respect of such VAT; and (B) if under a reverse charge mechanism the Relevant Payment is determined by HM Revenue & Customs or the Irish Revenue Commissioners or such other tax authority (as the case may be) to be consideration for a taxable supply in respect of which Charter (or the representative member of any VAT group of which Charter is a member) is liable to account for VAT then, to the extent that such VAT is not recoverable by Charter (or the representative member of any VAT group of which Charter is a member) by repayment or credit, the amount of the Relevant Payment shall be reduced to take account of such irrecoverable VAT, such that (A) the Relevant Payment; plus (B) an amount equal to the amount of such irrecoverable VAT, shall be equal to the amount that the Relevant Payment would have been in the absence of this Clause 10.5. 10.7 Such adjusting payment as may be required to be made by Charter to give effect to Clause 10.6(A) above shall be made five Business Days after the date on which the determination by HM Revenue & Customs orthe Irish Revenue Commissioners Acquisition lapses or such other applicable tax authority has been communicated by Colfax to Charter (together with such evidence of it as is reasonable in the circumstances to provide). If and to the extent that the Relevant Payment is determined by HM Revenue & Customs or the Irish Revenue Commissioners or such other applicable tax authority to be consideration for a taxable supply in respect of which Colfax (or the representative member of any VAT group of which Colfax is a member) is liable to account for VAT, Colfax (or the representative member of any VAT group of which Colfax is a member) shall promptly issue a valid VAT invoice to Charter in respect of that supplywithdrawn. 10.8 If, following payment of any amount 8.3 The Company shall pay the Inducement Fee due under this Clause 10 8.1.2 (if it subsequently transpires that becomes payable) in immediately available funds by not later than five Business Days after the amounts taken into account as recoverable date on which the relevant Third Party Transaction becomes or irrecoverable VAT of Charter for the purposes of calculating the quantum of such payment were incorrect, the parties shall make such adjusting payments between themselves as will place them in the position they would have been in had the correct amounts of recoverable is declared wholly unconditional or irrecoverable VAT of Charter been taken into accountis completed. 10.9 8.4 Nothing in this Agreement shall oblige Charter the Company to pay any an amount (iwhether in the form of the Inducement Fee or in damages in respect of any breach of any other provision of this Agreement) which the Panel determines would not be permitted by Rule 21.2 of the Code; (ii) if (but only . 8.5 The parties intend and shall use all reasonable endeavours to secure that the Inducement Fee is not treated for purposes as consideration for a taxable supply. 8.6 If and to the extent that) that any tax authority determines that the payment Inducement Fee is consideration for a taxable supply, the Inducement Fee shall be treated as inclusive of such amount would otherwise VAT and no amounts in respect of VAT shall be unlawful; payable in addition to the Inducement Fee but: 8.6.1 if the Inducement Fee is the consideration for any supply deemed to be made by the Company or (iii) if (but only the Company Representative Member and on which VAT is chargeable, then, to the extent thatthat such VAT is irrecoverable by the Company or the Company Representative Member, the Company and the Company Representative Member having used their reasonable endeavours to recover such VAT, the Inducement Fee shall be reduced (or part of the Inducement Fee reimbursed) such payment would, when aggregated with any prior payment pursuant to this Clause 10, otherwise exceed £15,275,000. The parties agree that the aggregate of the reduced fee and the irrecoverable VAT thereon equals the Inducement Fee; and 8.6.2 if the Panel Inducement Fee is the consideration for a supply in respect of which Manitowoc or the Manitowoc Representative Member is liable for VAT, then the Company shall determine (or shall procure that the payment Company Representative Member shall) use reasonable endeavours to obtain any available refund or credit in respect of any amount payable pursuant such VAT. Manitowoc shall provide such assistance to this Clause 10 would not the Company (or the Company Representative Member) as is reasonably necessary (including the making available of such invoices, information and assistance as may reasonably be permitted by Rule 21.2required) to enable the Company (or the Company Representative Member) to obtain such a refund or credit. If and to the extent that the Company (or the Company Representative Member) receives such a refund or credit, the Company shall (or shall procure that the Company Representative Member shall) within five Business Days of receiving the refund or credit, pay an amount payable equal to such refund or credit to Manitowoc. Such amount so paid shall not form part of the Inducement Fee for the purposes of paragraph sub-paragraph (i) above be reduced to the maximum amount that would be permitted to be paid pursuant to Rule 21.2 of the Codethis Agreement.

Appears in 1 contract

Samples: Implementation Agreement (Manitowoc Co Inc)

Inducement Fee. 10.1 Subject 9.1 As an inducement to Clause 10.4ITW to commit time and expense to the Acquisition, Charter shall pay the Break Payment Company undertakes to Bidco if: (A) following ITW, subject to the release limitations set out under Rule 21.2 of the AnnouncementCity Code and clause 9.2 below, a Competing Proposal that it will pay to ITW the Inducement Fee by way of compensation in the event that the Acquisition is announced, whether under Rule 2.4 or announced for the purposes of Rule 2.5 of the Code on a recommended basis and, after such announcement: (a) the Directors do not unanimously and without qualification recommend shareholders to vote in favour of the Scheme and the General Meeting Resolutions (or otherwise, before if applicable to accept the Offer) or they (or any committee of the Directors) at any time withdraw or adversely modify or qualify their recommendation to shareholders to vote in favour of the Scheme and/or the General Meeting Resolutions (or if applicable to accept the Offer) or they (or any committee of the Directors) at any time decide not to proceed with the Scheme; or (b) a Third Party Transaction is announced prior to the Acquisition lapses lapsing or is being withdrawn; and (B) such Competing Proposal or any other Competing Proposal announced during the Offer Period , which Third Party Transaction subsequently becomes or is declared wholly unconditional or is otherwise completed or if implemented by way of a scheme of arrangement, becomes effectivecompleted. 10.2 The Break Payment referred 9.2 Subject to in Clause 10.1 clause 9.3 below, any Inducement Fee payable by the Company to ITW shall be payable subject to the limitations under paragraph 10.2.7R of the Listing Rules on the basis that the Inducement Fee, when taken together with any other break fees (as follows: (Adefined in the Listing Rules) if the Competing Proposal is implemented by way of a scheme of arrangement, prior already agreed to such Scheme becoming effective; (B) if the Competing Proposal is implemented by way of takeover offer, prior to the date on which such Competing Proposal becomes of this agreement and actually paid or is declared wholly unconditional; or (C) otherwise, on the earlier of the expiry of the Offer Period and the Business Day falling 5 Business Days prior liable to such Competing Proposal being completed. 10.3 Without prejudice to its obligations pursuant to Clause 10.1 but subject to Clause 10.4, Charter shall pay the Competing Proposal Payment to Bidco if: (A) the Scheme Document, containing a Board Recommendation, is not posted to Charter Shareholders within 28 days of the Announcement (or such longer period as the Panel shall permit for the posting of such document) unless such failure is caused by a default of Colfax or Bidco, such payment to be made within 5 Business Days following the earlier of the Long Stop Date and expiry of the Offer Period; (B) following posting of the Scheme Document, the Charter Directors recommend a Competing Proposal or (for any reason whatsoever) withdraw, qualify or adversely modify their recommendation to accept, or vote in favour of, the Acquisition or such recommendation ceases to be unanimous, such payment to be made within 5 Business Days of the expiry of the Offer Period; (C) Charter shall issue any scheme document in respect of a Competing Proposal or the Charter Directors or any member of the Charter Group (or their respective representatives) shall otherwise take any steps to implement any Competing Proposal, such payment to be made within 5 Business Days of the expiry of the Offer Period; (D) Charter makes any changes to the Timetable, extension of time, adjournment, postponement or reconvention of either of the Meetings if such action itself as a procedural matter would, or would reasonably be expected to, prevent the Scheme (assuming for these purposes the requisite majorities being obtained at the Meetings) from becoming effective prior to the Long Stop Date, such payment to be made within 5 Business Days of the expiry of the Offer Period, 10.4 The obligation of Charter to make any Relevant Payment pursuant to Clause 10.1 or Clause 10.3 shall immediately cease and determine: (A) where the Acquisition becomes or is declared wholly unconditional or otherwise becomes effective; or (B) if, following the announcement of a Competing Proposal, the Acquisition lapses or is withdrawn (save in circumstances where the Panel has agreed that Bidco may invoke a condition to the Acquisition or may lapse or withdraw the Acquisition other than in reliance on a Condition relating to a Clearance or aCondition relating to a material adverse change not occasioned by any action of Charter). 10.5 The Relevant Payment shall be paid by no later than the last date for payment of Company (the Inducement Fee and such sum pursuant break fees being together referred to Clause 10.1, 10.2 or 10.3 (as the case may be) and “Aggregate Break Fees”), shall be made proportionally reduced to ensure that the Aggregate Break Fees shall not amount to a Class 1 Transaction in immediately available funds accordance with paragraph 10.2.7R of the Listing Rules. For the avoidance of doubt, if a break fee becomes payable by the Company to Manitowoc (without any deduction or withholding and without regard under a pre-existing agreement with Manitowoc) (the “Manitowoc Fee”) as well as to any lienITW under this agreement, right the maximum proportion of set-off, counter-claim or otherwise, except as required by Lawthe Inducement Fee payable under this agreement (the “Reduced Inducement Fee”) to Colfax’s bank pursuant to details which shall be notified in writing to Charter by no later than three Business Days after the event as a result of which the Relevant Payment becomes payable. 10.6 Without prejudice an amount subject to the obligation of Charter to make payment limitations in Rule 21.2 of the Relevant Payment on the date set out in Clause 10.5, the parties consider, Code and shall use all reasonable endeavours to secure, so that the Relevant Payment will be outside the scope of VAT and will Aggregate Break Fees are not for VAT purposes be treated as consideration for a taxable supply. IfClass 1 Transaction, however, the Relevant Payment is determined by Her Majesty's Revenue & Customs or the Irish Revenue Commissioners or any other tax authority to be in whole or in part the consideration for a taxable supply for VAT purposes then: (A) if the Relevant Payment is determined by HM Revenue & Customs or the Irish Revenue Commissioners or any other applicable tax authority to be consideration for a taxable supply in respect of which Colfax (or the representative member of any VAT group of which Colfax is a member) is liable to account for VAT then: (i) if and to the extent that such VAT is recoverable by Charter (or the representative member of any VAT group of which Charter is a member) by repayment or credit, less the amount of the Relevant Payment shall be increased to take account of such recoverable VAT, such that (A) the Relevant Payment (including any amount in respect of VAT); less (B) an amount equal to any VAT which Charter (or such representative member) is entitled to recover by credit or repayment, shall be equal to the amount that the Relevant Payment would have been in the absence of this Clause 10.6; and/or (ii) if and to the extent that such VAT is irrecoverable by Charter (or such representative member) then no additional amount shall be paid in respect of such VAT; and (B) if under a reverse charge mechanism the Relevant Payment is determined by HM Revenue & Customs or the Irish Revenue Commissioners or such other tax authority (as the case may be) to be consideration for a taxable supply in respect of which Charter (or the representative member of any VAT group of which Charter is a member) is liable to account for VAT then, to the extent that such VAT is not recoverable by Charter (or the representative member of any VAT group of which Charter is a member) by repayment or credit, the amount of the Relevant Payment shall be reduced to take account of such irrecoverable VAT, such that (A) the Relevant Payment; plus (B) an amount equal to the amount of such irrecoverable VAT, shall be equal to the amount that the Relevant Payment would have been in the absence of this Clause 10.5Manitowoc Fee. 10.7 Such adjusting payment as may be required to be made by Charter to give effect to Clause 10.6(A) above shall be made five Business Days after the date on which the determination by HM Revenue & Customs orthe Irish Revenue Commissioners or such other applicable tax authority has been communicated by Colfax to Charter (together with such evidence of it as is reasonable in the circumstances to provide). If and to the extent that the Relevant Payment is determined by HM Revenue & Customs or the Irish Revenue Commissioners or such other applicable tax authority to be consideration for a taxable supply in respect of which Colfax (or the representative member of any VAT group of which Colfax is a member) is liable to account for VAT, Colfax (or the representative member of any VAT group of which Colfax is a member) shall promptly issue a valid VAT invoice to Charter in respect of that supply. 10.8 If, following payment of any amount under this Clause 10 it subsequently transpires that the amounts taken into account as recoverable or irrecoverable VAT of Charter for the purposes of calculating the quantum of such payment were incorrect, the parties shall make such adjusting payments between themselves as will place them in the position they would have been in had the correct amounts of recoverable or irrecoverable VAT of Charter been taken into account. 10.9 Nothing in this Agreement shall oblige Charter to pay any amount (i) which the Panel determines would not be permitted by Rule 21.2 of the Code; (ii) if (but only to the extent that) the payment of such amount would otherwise be unlawful; or (iii) if (but only to the extent that) such payment would, when aggregated with any prior payment pursuant to this Clause 10, otherwise exceed £15,275,000. The parties agree that if the Panel shall determine that the payment of any amount payable pursuant to this Clause 10 would not be permitted by Rule 21.2, the amount payable shall for the purposes of paragraph sub-paragraph (i) above be reduced to the maximum amount that would be permitted to be paid pursuant to Rule 21.2 of the Code.

Appears in 1 contract

Samples: Implementation Agreement (Illinois Tool Works Inc)

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Inducement Fee. 10.1 Subject 12.1 As an inducement to Clause 10.4the Offeror to commit time and personnel to the Proposal, Charter shall the Company undertakes to the Offeror that it will pay to the Break Payment to Bidco Offeror the Inducement Fee by way of compensation if: (A) following , after the release of the AnnouncementPress Announcement to a RIS in accordance with Clause 2.2: 12.1.1 the Scheme Document is not posted by the Company within 28 days of the date of release of the Press Announcement (unless solely due to the default of the Offeror or its advisers); 12.1.2 the Directors withdraw or adversely modify or qualify their recommendation to Company Shareholders to vote in favour of the Scheme and/or the GM Resolutions (or if applicable to accept the Offer) and the Scheme does not become effective in accordance with its terms or, a Competing if applicable does not become or is not declared unconditional in all respects or, the Proposal is announced, whether under Rule 2.4 not otherwise completed provided that the recommendation ceasing to be unanimous shall not constitute an adverse modification or qualification; or 12.1.3 an Independent Competing Offer is announced for the purposes of Rule 2.5 of the Code prior to the Proposal lapsing or otherwise, before being withdrawn and the Acquisition lapses or is withdrawn; and (B) Independent Competing Offer referred to in such Competing Proposal announcement or any other Independent Competing Proposal announced during Offer is either: (i) recommended by the Offer Period subsequently Directors; or (ii) becomes or is declared wholly unconditional in all respects or is otherwise completed or if implemented by way of a scheme of arrangement, becomes effectivecompleted. 10.2 12.2 The Break Payment referred to Company will pay the Inducement Fee due under Clause 12.1 (if it becomes payable) in Clause 10.1 shall be payable as follows: (A) if the Competing Proposal is implemented immediately available funds by way of a scheme of arrangement, prior to such Scheme becoming effective; (B) if the Competing Proposal is implemented by way of takeover offer, prior to not later than five Business Days after the date on which such Competing Proposal becomes or is declared wholly unconditional; or (C) otherwise, on the earlier of the expiry of the Offer Period and the Business Day falling 5 Business Days prior to such Competing Proposal being completed. 10.3 Without prejudice to its obligations Inducement Fee falls due pursuant to Clause 10.1 but subject to Clause 10.4, Charter shall pay the Competing Proposal 12.1. Payment to Bidco if: (A) the Scheme Document, containing a Board Recommendation, is not posted to Charter Shareholders within 28 days of the Announcement (or such longer period as the Panel shall permit for the posting of such document) unless such failure is caused by a default of Colfax or Bidco, such payment to be made within 5 Business Days following the earlier of the Long Stop Date and expiry of the Offer Period; (B) following posting of the Scheme Document, the Charter Directors recommend a Competing Proposal or (for any reason whatsoever) withdraw, qualify or adversely modify their recommendation to accept, or vote in favour of, the Acquisition or such recommendation ceases to be unanimous, such payment to be made within 5 Business Days of the expiry of the Offer Period; (C) Charter shall issue any scheme document in respect of a Competing Proposal or the Charter Directors or any member of the Charter Group (or their respective representatives) shall otherwise take any steps to implement any Competing Proposal, such payment to be made within 5 Business Days of the expiry of the Offer Period; (D) Charter makes any changes to the Timetable, extension of time, adjournment, postponement or reconvention of either of the Meetings if such action itself as a procedural matter would, or would reasonably be expected to, prevent the Scheme (assuming for these purposes the requisite majorities being obtained at the Meetings) from becoming effective prior to the Long Stop Date, such payment to be made within 5 Business Days of the expiry of the Offer Period, 10.4 The obligation of Charter to make any Relevant Payment pursuant to Clause 10.1 or Clause 10.3 shall immediately cease and determine: (A) where the Acquisition becomes or is declared wholly unconditional or otherwise becomes effective; or (B) if, following the announcement of a Competing Proposal, the Acquisition lapses or is withdrawn (save in circumstances where the Panel has agreed that Bidco may invoke a condition to the Acquisition or may lapse or withdraw the Acquisition other than in reliance on a Condition relating to a Clearance or aCondition relating to a material adverse change not occasioned by any action of Charter). 10.5 The Relevant Payment shall be paid by no later than the last date for payment of such sum pursuant to Clause 10.1, 10.2 or 10.3 (as the case may be) and shall will be made in immediately available funds (without to such bank account as may be notified to the Company by the Offeror for such purposes. 12.3 All sums payable under this Clause 12 will be paid in the form of an electronic funds transfer for same day value to such bank as may be notified by the Offeror to the Company and will 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, counter-claim counterclaim or otherwise, except as required by Law) to Colfax’s bank pursuant to details which shall be notified in writing to Charter by no later than three Business Days after the event as a result of which the Relevant Payment becomes payable. 10.6 Without prejudice to the obligation of Charter to make payment of the Relevant Payment on the date set out in Clause 10.5, the parties consider, and shall use all reasonable endeavours to secure, that the Relevant Payment will be outside the scope of VAT and will not for VAT purposes be treated as consideration for a taxable supply. If, however, the Relevant Payment is determined by Her Majesty's Revenue & Customs or the Irish Revenue Commissioners or any other tax authority to be in whole or in part the consideration for a taxable supply for VAT purposes then: (A) if the Relevant Payment is determined by HM Revenue & Customs or the Irish Revenue Commissioners or any other applicable tax authority to be consideration for a taxable supply in respect of which Colfax (or the representative member of any VAT group of which Colfax is a member) is liable to account for VAT then: (i) if and to the extent that such VAT is recoverable by Charter (or the representative member of any VAT group of which Charter is a member) by repayment or credit, the amount of the Relevant Payment shall be increased to take account of such recoverable VAT, such that (A) the Relevant Payment (including any amount in respect of VAT); less (B) an amount equal to any VAT which Charter (or such representative member) is entitled to recover by credit or repayment, shall be equal to the amount that the Relevant Payment would have been in the absence of this Clause 10.6; and/or (ii) if and to the extent that such VAT is irrecoverable by Charter (or such representative member) then no additional amount shall be paid in respect of such VAT; and (B) if under a reverse charge mechanism the Relevant Payment is determined by HM Revenue & Customs or the Irish Revenue Commissioners or such other tax authority (as the case may be) to be consideration for a taxable supply in respect of which Charter (or the representative member of any VAT group of which Charter is a member) is liable to account for VAT then, to the extent that such VAT is not recoverable by Charter (or the representative member of any VAT group of which Charter is a member) by repayment or credit, the amount of the Relevant Payment shall be reduced to take account of such irrecoverable VAT, such that (A) the Relevant Payment; plus (B) an amount equal to the amount of such irrecoverable VAT, shall be equal to the amount that the Relevant Payment would have been in the absence of this Clause 10.5. 10.7 Such adjusting payment as may be required to be made by Charter to give effect to Clause 10.6(A) above shall be made five Business Days after the date on which the determination by HM Revenue & Customs orthe Irish Revenue Commissioners or such other applicable tax authority has been communicated by Colfax to Charter (together with such evidence of it as is reasonable in the circumstances to provide). If and to the extent that the Relevant Payment is determined by HM Revenue & Customs or the Irish Revenue Commissioners or such other applicable tax authority to be consideration for a taxable supply in respect of which Colfax (or the representative member of any VAT group of which Colfax is a member) is liable to account for VAT, Colfax (or the representative member of any VAT group of which Colfax is a member) shall promptly issue a valid VAT invoice to Charter in respect of that supply. 10.8 If, following payment of any amount under this Clause 10 it subsequently transpires that the amounts taken into account as recoverable or irrecoverable VAT of Charter for the purposes of calculating the quantum of such payment were incorrect, the parties shall make such adjusting payments between themselves as will place them in the position they would have been in had the correct amounts of recoverable or irrecoverable VAT of Charter been taken into account. 10.9 12.4 Nothing in this Agreement shall will oblige Charter the Company to pay any amount (i) which the Panel determines would not be permitted by Rule 21.2 of the Code; . The Company confirms that it has consulted with the Panel in relation to this Clause 12, that it and the Company’s financial adviser have given the Panel all confirmations and information in relation to this Clause 12 as may be required by the Code (iiincluding all relevant practice statements) if (but only and that the Panel has raised no objection to the Company entering into the obligations contained in this Clause 12. 12.5 The parties intend and will use all reasonable endeavours to secure that the Inducement Fee is not treated for VAT purposes as consideration for a taxable supply. If and to the extent thatthat any tax authority determines that the Inducement Fee is consideration for a taxable supply, the Inducement Fee will be treated as inclusive of VAT and no amounts in respect of VAT will be payable in addition to the Inducement Fee, but if the Inducement Fee is held by HM Revenue & Customs to be the consideration for a supply in respect of which the Offeror or the Offeror Representative Member is liable for VAT, then the Company will (or will procure that the Company Representative Member will) the payment use reasonable endeavours to obtain any available refund or credit in respect of such amount would otherwise VAT. The Offeror will provide such assistance to the Company (or the Company Representative Member) as is reasonably necessary (including the making available of such invoices, information and assistance as may reasonably be unlawful; required) to enable the Company (or (iiithe Company Representative Member) if (but only to obtain such a refund or credit. If and to the extent that) such payment would, when aggregated with any prior payment pursuant to this Clause 10, otherwise exceed £15,275,000. The parties agree that if the Panel shall determine that the payment of any amount payable pursuant to this Clause 10 would not be permitted by Rule 21.2Company (or the Company Representative Member) receives such a refund or credit, the Company will (or will procure that the Company Representative Member will) within five Business Days of receiving the refund or utilising the credit, pay an amount payable shall equal to such refund or credit to the Offeror. Such amount so paid will not form part of the Inducement Fee for the purposes of paragraph sub-paragraph (i) above be reduced to the maximum amount that would be permitted to be paid pursuant to Rule 21.2 of the Codethis Clause.

Appears in 1 contract

Samples: Implementation Agreement (Gen Probe Inc)

Inducement Fee. 10.1 Subject 8.1 In consideration of IMI agreeing to Clause 10.4commit time and personnel to making preparations for the purposes of the Proposal, Charter shall pay and as a pre-condition to IMI being prepared to do so, BBI undertakes to IMI in the Break Payment to Bidco ifterms set out in this clause 8. 8.2 If, between the date of issue of the Announcement and the date upon which the Proposal lapses or (as applicable) is not approved by BBI Shareholders: (Aa) following the release BBI Board (or any committee thereof) at any time withdraws or adversely modifies or qualifies its unanimous recommendation of the Announcement, Proposal or determines not to implement the Proposal; or (b) a third party announces that it is considering making a Competing Proposal is announcedProposal, whether under Rule 2.4 or Rule 2.5 of the Code or otherwise, before the Acquisition lapses or is withdrawn; and: (Bi) such that Competing Proposal (whether or not announced by the third party or any other Competing Proposal announced during the Offer Period subsequently person acting in concert with it) completes or becomes effective or becomes or is declared wholly unconditional or is otherwise completed or if implemented by way of a scheme of arrangement, becomes effective. 10.2 The Break Payment referred to in Clause 10.1 shall be payable as follows:all respects; or (Aii) if the that Competing Proposal is implemented by way of a scheme of arrangement, prior to such Scheme becoming effective; (B) if the Competing Proposal is implemented by way of takeover offer, prior referred to the date on competition authorities, lapses, and the relevant third party makes another offer for BBI which such Competing Proposal completes, or becomes effective or becomes or is declared wholly unconditional; or (C) otherwiseunconditional in all respects, on then BBI shall pay to IMI the earlier of the expiry of the Offer Period and the Business Day falling 5 Business Days prior to such Competing Proposal being completedInducement Fee. 10.3 Without prejudice to its obligations pursuant to Clause 10.1 but subject to Clause 10.4, Charter 8.3 The Inducement Fee shall pay the Competing Proposal Payment to Bidco if: (A) the Scheme Document, containing a Board Recommendation, is not posted to Charter Shareholders within 28 days be an amount of the Announcement (or such longer period as the Panel shall permit for the posting 1% of such document) unless such failure is caused by a default gross offer consideration inclusive of Colfax or Bidco, such payment to be made within 5 Business Days following the earlier of the Long Stop Date and expiry of the Offer Period; (B) following posting of the Scheme Document, the Charter Directors recommend a Competing Proposal or (for any reason whatsoever) withdraw, qualify or adversely modify their recommendation to accept, or vote in favour of, the Acquisition or such recommendation ceases to be unanimous, such payment to be made within 5 Business Days of the expiry of the Offer Period; (C) Charter shall issue any scheme document amounts in respect of a Competing Proposal or the Charter Directors or any member of the Charter Group value added tax chargeable thereon (or their respective representatives) shall otherwise take any steps to implement any Competing Proposal, such payment to be made within 5 Business Days of the expiry of the Offer Period; (D) Charter makes any changes to the Timetable, extension of time, adjournment, postponement or reconvention of either of the Meetings if such action itself as a procedural matter would, or would reasonably be expected to, prevent the Scheme (assuming for these purposes the requisite majorities being obtained at the Meetings) from becoming effective prior to the Long Stop Date, such payment to be made within 5 Business Days of the expiry of the Offer Period, 10.4 The obligation of Charter to make any Relevant Payment pursuant to Clause 10.1 or Clause 10.3 shall immediately cease and determine: (A) where the Acquisition becomes or is declared wholly unconditional or otherwise becomes effective; or (B) if, following the announcement of a Competing Proposal, the Acquisition lapses or is withdrawn (save in circumstances where the Panel has agreed that Bidco may invoke a condition to the Acquisition or may lapse or withdraw the Acquisition other than in reliance on a Condition relating to a Clearance or aCondition relating to a material adverse change not occasioned by any action of Charterany). 10.5 The Relevant Payment 8.4 BBI shall not be liable to pay the Inducement Fee more than once. 8.5 Any amount payable under clause 8.2 shall be paid by no later than the last date for payment of such sum pursuant to Clause 10.1, 10.2 or 10.3 (as the case may be) and shall be made in immediately available funds (without any deduction or withholding and without regard to any lien, right of set-off, counter-claim or otherwise, except as required a bank account nominated by Law) to Colfax’s bank pursuant to details which shall be notified IMI in writing to Charter by no later than three for this purpose) within two Business Days after of, in the event as a result case of which clause 8.2 (a), the Relevant Payment becomes payable. 10.6 Without prejudice to the obligation of Charter to make payment date of the Relevant Payment on BBI decision and, in the case of clause 8.2 (b), the date set out in Clause 10.5, the parties consider, and shall use all reasonable endeavours to secure, that the Relevant Payment will be outside the scope of VAT and will not for VAT purposes be treated as consideration for a taxable supply. If, however, the Relevant Payment is determined by Her Majesty's Revenue & Customs or the Irish Revenue Commissioners or any other tax authority to be in whole or in part the consideration for a taxable supply for VAT purposes then: (A) if the Relevant Payment is determined by HM Revenue & Customs or the Irish Revenue Commissioners or any other applicable tax authority to be consideration for a taxable supply in respect of which Colfax (or the representative member of any VAT group of which Colfax is a member) is liable to account for VAT then: (i) if and to the extent that such VAT is recoverable by Charter (or the representative member of any VAT group of which Charter is a member) by repayment or credit, the amount completion of the Relevant Payment shall be increased to take account of such recoverable VAT, such that (A) the Relevant Payment (including any amount in respect of VAT); less (B) an amount equal to any VAT which Charter (relevant offer or such representative member) is entitled to recover by credit or repayment, shall be equal to the amount that the Relevant Payment would have been in the absence of this Clause 10.6; and/or (ii) if and to the extent that such VAT is irrecoverable by Charter (or such representative member) then no additional amount shall be paid in respect of such VAT; and (B) if under a reverse charge mechanism the Relevant Payment is determined by HM Revenue & Customs or the Irish Revenue Commissioners or such other tax authority (as the case may be) to be consideration for a taxable supply in respect of which Charter (or the representative member of any VAT group of which Charter is a member) is liable to account for VAT then, to the extent that such VAT is not recoverable by Charter (or the representative member of any VAT group of which Charter is a member) by repayment or credit, the amount of the Relevant Payment shall be reduced to take account of such irrecoverable VAT, such that (A) the Relevant Payment; plus (B) an amount equal to the amount of such irrecoverable VAT, shall be equal to the amount that the Relevant Payment would have been in the absence of this Clause 10.5scheme. 10.7 Such adjusting payment as may be required to be made by Charter to give effect to Clause 10.6(A) above shall be made five Business Days after the date on which the determination by HM Revenue & Customs orthe Irish Revenue Commissioners or such other applicable tax authority has been communicated by Colfax to Charter (together with such evidence of it as is reasonable in the circumstances to provide). If and to the extent that the Relevant Payment is determined by HM Revenue & Customs or the Irish Revenue Commissioners or such other applicable tax authority to be consideration for a taxable supply in respect of which Colfax (or the representative member of any VAT group of which Colfax is a member) is liable to account for VAT, Colfax (or the representative member of any VAT group of which Colfax is a member) shall promptly issue a valid VAT invoice to Charter in respect of that supply. 10.8 If, following payment of any amount under this Clause 10 it subsequently transpires that the amounts taken into account as recoverable or irrecoverable VAT of Charter for the purposes of calculating the quantum of such payment were incorrect, the parties shall make such adjusting payments between themselves as will place them in the position they would have been in had the correct amounts of recoverable or irrecoverable VAT of Charter been taken into account. 10.9 Nothing in this Agreement shall oblige Charter to pay any amount (i) which the Panel determines would not be permitted by Rule 21.2 of the Code; (ii) if (but only to the extent that) the payment of such amount would otherwise be unlawful; or (iii) if (but only to the extent that) such payment would, when aggregated with any prior payment pursuant to this Clause 10, otherwise exceed £15,275,000. The parties agree that if the Panel shall determine that the payment of any amount payable pursuant to this Clause 10 would not be permitted by Rule 21.2, the amount payable shall for the purposes of paragraph sub-paragraph (i) above be reduced to the maximum amount that would be permitted to be paid pursuant to Rule 21.2 of the Code.

Appears in 1 contract

Samples: Exclusivity and Inducement Fee Deed (Inverness Medical Innovations Inc)

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