Common use of Break Payment Clause in Contracts

Break Payment. 10.1 Offeror undertakes to pay to ▇▇▇▇▇ ▇▇▇▇ the sum of £17,920,000 (seventeen million nine hundred and twenty thousand pounds sterling) (the Break Payment) by way of compensation for any loss or damage suffered by ▇▇▇▇▇ ▇▇▇▇ if the Announcement is released in accordance with clause 2.1 and after such Announcement any of the following events (each a Break Payment Event) occurs: (a) on or prior to the Longstop Date: (i) Offeror or Bidco invokes (and is permitted by the Panel to invoke) any Regulatory Condition so as to cause the Acquisition not to proceed, lapse or be withdrawn; or (ii) a Rule 12 Event takes place; or (b) any Regulatory Condition has not been satisfied or waived by Offeror or Bidco by 11.59 p.m. on the date which is 14 days prior to the Longstop Date. 10.2 No Break Payment shall be payable if: (a) at the time the relevant Break Payment Event occurs, this Agreement has already been terminated pursuant to clause 13, unless: (i) this Agreement has terminated pursuant to clause 13.1(d) as a result of a Regulatory Condition not having been satisfied or waived or becoming incapable of satisfaction or waiver; or (ii) this Agreement has terminated pursuant to clause 13.1(h) and the Scheme (or the Takeover Offer as the case may be) has: (A) lapsed as a result of a Rule 12 Event; or (B) been withdrawn or lapsed as a result of a Regulatory Condition being: (A) invoked by Offeror or Bidco; (B) becoming incapable of satisfaction by the Longstop Date and Offeror or Bidco stating that it will not be waived; or (C) not being capable of being waived and becoming incapable of satisfaction by the Longstop Date; or (b) the Break Payment Event was caused by or substantially contributed to by: (i) a failure by ▇▇▇▇▇ ▇▇▇▇ (or JAB Luxury) to submit a filing, notification or submission in relation to the Acquisition under the United States ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, for which it is responsible, at least 70 calendar days prior to the Longstop Date; or (ii) a breach by ▇▇▇▇▇ ▇▇▇▇ of its obligations relating to the satisfaction of the Regulatory Conditions under clauses 3.4(a)(ii) to 3.4(a)(iii) and/or clauses 3.4(b)(i) to 3.4(b)(ii) where such breach has caused or substantially contributed to Offeror’s inability to satisfy the Regulatory Conditions in paragraph 3 of Part A to Appendix 1 to the Announcement by no later than 14 days prior to the Longstop Date provided that in each case Offeror has given ▇▇▇▇▇ ▇▇▇▇ a request in writing setting out in reasonable detail what information it requires from ▇▇▇▇▇ ▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇ has subsequently failed to provide an appropriate response in substantial compliance within a reasonable period (not less than five working days, or such lesser period as may be required to comply with a Regulatory Authority’s deadline) from ▇▇▇▇▇ ▇▇▇▇'▇ receipt of the written request (it being agreed and understood that an "appropriate response" would not require the disclosure of any information or documentation: (i) which is not within ▇▇▇▇▇ ▇▇▇▇'▇ possession at the relevant time and not reasonably capable of being generated from information or documentation in its possession at the relevant time at a reasonable cost within the time available; or (ii) where such disclosure of information is prohibited from being disclosed by any law or regulation, and that disclosure in accordance with the terms of the Joint Defense Agreement will constitute an appropriate response). 10.3 Offeror shall pay the Break Payment by no later than ten (10) Business Days after the date of the Break Payment Event which causes it to become payable pursuant to clause 10.1. 10.4 All sums payable under this clause 10 shall be paid in the form of an electronic funds transfer for same day value to such bank account as may be notified by ▇▇▇▇▇ ▇▇▇▇ in writing to Offeror and 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. If any deduction or withholding is required by Law, Offeror shall be entitled to make the deduction or withholding but shall not be required to pay any additional amount with respect thereto. 10.5 If the Break Payment is paid in accordance with this clause 10, except with respect to: (i) fraud; and (ii) amounts payable by the Offeror and Bidco pursuant to the indemnity provision in clause 15.5, ▇▇▇▇▇ ▇▇▇▇’▇ receipt of the Break Payment (plus any additional amounts in respect of VAT payable pursuant to clause 12) shall be the sole and exclusive remedy of ▇▇▇▇▇ ▇▇▇▇ against Offeror, Bidco, their affiliates and their respective directors and officers for any and all losses and damages suffered in connection with this Agreement and the transactions contemplated herein and in no circumstance shall Offeror be required to pay the Break Payment more than once or pay more than one Break Payment.

Break Payment. 10.1 Offeror undertakes to pay to ▇▇▇▇▇ ▇▇▇▇ the sum of £17,920,000 (seventeen million nine hundred and twenty thousand pounds sterling) (the Break Payment) by way of compensation for any loss or damage suffered by ▇▇▇▇▇ ▇▇▇▇ if the Announcement is released in accordance with clause 2.1 and after such Announcement any of the following events (each a Break Payment Event) occurs: (a) on or prior to the Longstop Date: (i) Offeror or Bidco invokes (and is permitted by the Panel to invoke) any Regulatory Condition so as to cause the Acquisition not to proceed, lapse or be withdrawn; or (ii) a Rule 12 Event takes place; or (b) any Regulatory Condition has not been satisfied or waived by Offeror or Bidco by 11.59 p.m. on the date which is 14 days prior to the Longstop Date. 10.2 No Break Payment shall be payable if: (a) at the time the relevant Break Payment Event occurs, this Agreement has already been terminated pursuant to clause 13, unless: (i) this Agreement has terminated pursuant to clause 13.1(d) as a result of a Regulatory Condition not having been satisfied or waived or becoming incapable of satisfaction or waiver; or (ii) this Agreement has terminated pursuant to clause 13.1(h) and the Scheme (or the Takeover Offer as the case may be) has: (A) lapsed as a result of a Rule 12 Event; or (B) been withdrawn or lapsed as a result of a Regulatory Condition being: (A) invoked by Offeror or Bidco; (B) becoming incapable of satisfaction by the Longstop Date and Offeror or Bidco stating that it will not be waived; or (C) not being capable of being waived and becoming incapable of satisfaction by the Longstop Date; or (b) the Break Payment Event was caused by or substantially contributed to by: (i) a failure by ▇▇▇▇▇ ▇▇▇▇ (or JAB Luxury) to submit a filing, notification or submission in relation to the Acquisition under the United States ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, for which it is responsible, at least 70 calendar days prior to the Longstop Date; or (ii) a breach by ▇▇▇▇▇ ▇▇▇▇ of its obligations relating to the satisfaction of the Regulatory Conditions under clauses 3.4(a)(ii) to 3.4(a)(iii) and/or clauses 3.4(b)(i) to 3.4(b)(ii) where such breach has caused or substantially contributed to Offeror’s inability to satisfy the Regulatory Conditions in paragraph 3 of Part A to Appendix 1 to the Announcement by no later than 14 days prior to the Longstop Date provided that in each case Offeror has given ▇▇▇▇▇ ▇▇▇▇ a request in writing setting out in reasonable detail what information it requires from ▇▇▇▇▇ ▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇ has subsequently failed to provide an appropriate response in substantial compliance within a reasonable period (not less than five working days, or such lesser period as may be required to comply with a Regulatory Authority’s deadline) from ▇▇▇▇▇ ▇▇▇▇'▇ receipt of the written request (it being agreed and understood that an "appropriate response" would not -16- require the disclosure of any information or documentation: (i) which is not within ▇▇▇▇▇ ▇▇▇▇'▇ possession at the relevant time and not reasonably capable of being generated from information or documentation in its possession at the relevant time at a reasonable cost within the time available; or (ii) where such disclosure of information is prohibited from being disclosed by any law or regulation, and that disclosure in accordance with the terms of the Joint Defense Agreement will constitute an appropriate response). 10.3 Offeror shall pay the Break Payment by no later than ten (10) Business Days after the date of the Break Payment Event which causes it to become payable pursuant to clause 10.1. 10.4 All sums payable under this clause 10 shall be paid in the form of an electronic funds transfer for same day value to such bank account as may be notified by ▇▇▇▇▇ ▇▇▇▇ in writing to Offeror and 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. If any deduction or withholding is required by Law, Offeror shall be entitled to make the deduction or withholding but shall not be required to pay any additional amount with respect thereto. 10.5 If the Break Payment is paid in accordance with this clause 10, except with respect to: (i) fraud; and (ii) amounts payable by the Offeror and Bidco pursuant to the indemnity provision in clause 15.5, ▇▇▇▇▇ ▇▇▇▇’▇ receipt of the Break Payment (plus any additional amounts in respect of VAT payable pursuant to clause 12) shall be the sole and exclusive remedy of ▇▇▇▇▇ ▇▇▇▇ against Offeror, Bidco, their affiliates and their respective directors and officers for any and all losses and damages suffered in connection with this Agreement and the transactions contemplated herein and in no circumstance shall Offeror be required to pay the Break Payment more than once or pay more than one Break Payment.

Break Payment. 10.1 Offeror undertakes to pay to ▇▇▇▇▇ ▇▇▇▇ the sum of £17,920,000 (seventeen million nine hundred and twenty thousand pounds sterling) (the Break Payment) by 11.1 By way of compensation for any loss or damage suffered by ▇▇▇▇▇ ▇▇▇▇ if 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 is released in accordance with clause 2.1 and after such Announcement any of the following events (each a Break Payment Event) occursClause 2.1: (aA) on or prior to the Longstop Long Stop Date, the board of directors of Shell: (i) Offeror 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 Bidco 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 so as to cause the Acquisition not to proceed, lapse or be withdrawnCondition; or (iiC) a Rule 12 Event takes place; or (b) on the Long Stop Date, any Pre-Condition and / or any Regulatory Condition has not been satisfied or waived by Offeror or Bidco by 11.59 p.m. on the date which is 14 days prior to the Longstop DateShell, (each a “Break Payment Event”). 10.2 11.2 No Break Payment shall be payable if: (aA) at the time the relevant Break Payment Event occurs, this Agreement has already been terminated pursuant to clause 13Clause 13.1(A), unless(B), (C), (E), (F) or (G), save where: (i) this Agreement has terminated pursuant to clause 13.1(dClause 13.1(E) as a result of a any Pre-Condition or Regulatory Condition not having been satisfied or waived or becoming incapable of satisfaction or waiver; or (ii) this Agreement has terminated pursuant to clause 13.1(h) and the Scheme (or the Takeover Offer as the case may be) has: (A) lapsed as a result of a Rule 12 Event; or (B) been withdrawn or lapsed as a result of a Regulatory Condition beingCondition: (Aa) being invoked by Offeror or Bidco; Shell (Bb) becoming incapable of satisfaction by the Longstop Long Stop Date and Offeror or Bidco Shell stating that it will not be waived; waived or (Cc) not being capable of being waived and becoming incapable of satisfaction by the Longstop Date; or (b) the Break Payment Event was caused by or substantially contributed to by: (i) a failure by ▇▇▇▇▇ ▇▇▇▇ (or JAB Luxury) to submit a filing, notification or submission in relation to the Acquisition under the United States ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, for which it is responsible, at least 70 calendar days prior to the Longstop 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 by ▇▇▇▇▇ ▇▇▇▇ of its obligations relating under Clauses 3.1 to 3.6 or Clause 5.4 of this Agreement, provided that Shell shall have notified BG in writing promptly upon becoming aware of any such failure and BG shall not have remedied any such failure within 15 days of receipt of such notice or, if earlier, in sufficient time for Shell to reasonably meet any regulatory or legal deadline; or (C) at the satisfaction time the relevant Break Payment Event occurs, Shell has already effected a Switch in accordance with Clauses 6.3(B) or 6.3(C). 11.3 Subject to Clause 11.4, Shell shall pay or procure the payment of the Regulatory Conditions under clauses 3.4(a)(ii) Break Payment to 3.4(a)(iii) and/or clauses 3.4(b)(i) to 3.4(b)(ii) where such breach has caused or substantially contributed to Offeror’s inability to satisfy BG within 10 Business Days of the Regulatory Conditions in paragraph 3 occurrence of Part A to Appendix 1 to the Announcement by no later than 14 days prior to the Longstop Date provided that in each case Offeror has given ▇▇▇▇▇ ▇▇▇▇ a request in writing setting out in reasonable detail what information it requires from ▇▇▇▇▇ ▇▇▇▇Break Payment Event. 11.4 The parties anticipate, and ▇▇▇▇▇ ▇▇▇▇ has subsequently failed shall take the position and use all reasonable endeavours to provide an appropriate response ensure that it is accepted for the relevant tax purposes, that the Break Payment is outside the scope of VAT and is not treated for VAT purposes as consideration for a taxable supply. If, however, the Break Payment is treated by any tax authority in substantial compliance within whole or part as the consideration for a reasonable period (not less than five working days, or such lesser period as may be required to comply with a Regulatory Authority’s deadline) from ▇▇▇▇▇ ▇▇▇▇'▇ receipt of the written request (it being agreed and understood that an "appropriate response" would not require the disclosure of any information or documentationtaxable supply: (i) which is not within ▇▇▇▇▇ ▇▇▇▇'▇ possession at the relevant time BG shall provide Shell with a valid VAT invoice in respect of that supply; and not reasonably capable of being generated from information or documentation in its possession at the relevant time at a reasonable cost within the time available; or (ii) where such disclosure of information is prohibited from being disclosed by any law if BG (or regulation, and that disclosure in accordance with the terms representative member of the Joint Defense Agreement will constitute an appropriate response). 10.3 Offeror VAT group of which BG is a member) is liable to account for VAT in respect of that supply, Shell shall pay the Break Payment by to BG (in addition to any other consideration for that supply) an amount equal to such VAT. Any such additional amounts in respect of VAT shall be paid no later than ten (10) Business Days after the date falling 10 days before the date on which BG (or the representative member of the Break Payment Event VAT group of which causes it BG is a member) is liable to become payable pursuant to clause 10.1account for such VAT (the “Due Date”) or, if later, the date falling five days after BG has notified Shell in writing of the Due Date. 10.4 All sums payable under this clause 10 11.5 Payment shall be paid made in the form of an electronic immediately available funds transfer for same day value to such bank account as may be notified by ▇▇▇▇▇ ▇▇▇▇ in writing to Offeror and shall be paid in full free from (without any deduction or withholding whatsoever (withholding, save only as may be required requested by Law) law, and without regard to any lien, right of set-off, counterclaim or otherwise. If any deduction or withholding is required ) to such bank account as may be notified to Shell by Law, Offeror shall be entitled to make the deduction or withholding but shall not be required to pay any additional amount with respect theretoBG for such purpose. 10.5 If 11.6 In the event that the Break Payment is paid in accordance with this clause 10Clause 11 and this Agreement terminates in accordance with Clause 13.1(D), except with respect to: (i) to fraud; and (ii) amounts payable by the Offeror and Bidco pursuant , BG’s right to the indemnity provision in clause 15.5, ▇▇▇▇▇ ▇▇▇▇’▇ receipt of receive the Break Payment (plus any additional amounts in respect of VAT payable pursuant to clause 12under Clause 11.4) shall be the sole and exclusive remedy of ▇▇▇▇▇ ▇▇▇▇ BG against Offeror, Bidco, their affiliates and their respective directors and officers Shell for any and all losses and damages suffered in connection with this Agreement and the transactions contemplated herein and in by this Agreement. In no circumstance event shall Offeror Shell be required to pay the Break Payment more than once or pay more than one Break Payment.