Common use of Reverse Termination Payment Clause in Contracts

Reverse Termination Payment. 17.2.1 The Buyer shall pay to the Company, within five (5) calendar days of a first written request from the Company a termination payment equal to $575 million (the "Reverse Termination Payment") in cash, exclusive of VAT, if any, if this Agreement is validly terminated by (i) the Buyer pursuant to clause 16.1(h) if such termination is based upon or relating to any Order or other Law that is either an Antitrust Law or is based upon, promulgated under or issued pursuant to Antitrust Laws; provided the issuance of any such final and nonappealable Order, decree, ruling or other action was not attributable to, and proximately caused by, a failure on the part of the Company to perform in any material respect any covenant or obligation in clause 13 of this Agreement required to be performed by it, or (ii) the Buyer or the Company pursuant to clause 16.1(d) because the Offer Condition set out in clause 4.1.1(b) is not satisfied due to the absence of Antitrust Clearance from the Relevant Antitrust Authorities, or waived, by the Long Stop Date, or as a result of any final and nonappealable Order, decree, ruling or other action or other Law that is either an Antitrust Law or is based upon, promulgated under or issued pursuant to Antitrust Laws (provided the issuance of any such final and nonappealable Order, decree, ruling or other action was not attributable to, and proximately caused by, a failure on the part of the Company to perform in any material respect any covenant or obligation in clause 13 of this Agreement required to be performed by it) and each of the other Offer Conditions has been satisfied at the time of termination or as of the End of the Acceptance Period, as applicable; provided, that (a) failure to satisfy the Offer Condition set out in clause 4.1.1(b) was not proximately caused by a material breach by the Company under clause 13 and (b) no failure of an Offer Condition to be satisfied shall relieve Buyer from its obligation to pay the Reverse Termination Payment if such failure was proximately caused by a material breach by the Buyer under this Agreement (subclause (i) and (ii) hereunder collectively being referred to as "Antitrust Termination"). If (A) the Buyer pays the Reverse Termination Payment in accordance with this clause 17.2, and (B) prior to the date that is fifteen (15) months from the date of the Antitrust Termination, the Company or any of its Affiliates enters into a definitive and binding contract that includes all the terms for any transaction specified in the definition of "Alternative Proposal," (whereby for purposes of this clause any reference in the definition of "Alternative Proposal" to "twenty percent (20%)" shall be deemed a reference to "fifty percent (50%)"), on terms and conditions that constitute a "Threshold Value Contract" (as defined below) (such transaction, a "Threshold Value Transaction"), and (C) such Threshold Value Transaction is subsequently consummated, then the Company shall on the date on which such Threshold Value Transaction is consummated, pay to the Buyer, by wire transfer of immediately available funds, 2.1. Notwithstanding the foregoing, the Buyer shall not be entitled to any repayment of the Reverse Termination Payment or any portion thereof if (i) failure to satisfy the Offer Condition set out in clause 4.1.1(b) was proximately caused by a material breach by the Buyer of clause 13, (ii) following the termination of this Agreement, the Buyer makes a proposal to acquire the Company or knowingly encourages the Company’s management, Managing Board, or Supervisory Board to initiate a process to sell itself that results in the Company or any of its Affiliates entering into a definitive and binding contract that includes all the terms for a Threshold Value Transaction or (iii) the Buyer takes any action to materially delay the Company or its applicable Affiliate from entering into or subsequently consummating the Threshold Value Transaction, including, without limitation, any filing, submission or appeal to a Governmental Authority seeking to delay or impede the transaction underlying the Threshold Value Transaction or initiating any Action with respect to the transaction underlying the Threshold Value Transaction (other than any Action relating in any way to this Agreement or the Transactions).

Reverse Termination Payment. 17.2.1 The Buyer shall pay to the Company, within five (5) calendar days of a first written request from the Company a termination payment equal to $575 million (the "“Reverse Termination Payment"”) in cash, exclusive of VAT, if any, if this Agreement is validly terminated by (i) the Buyer pursuant to clause 16.1(h) if such termination is based upon or relating to any Order or other Law that is either an Antitrust Law or is based upon, promulgated under or issued pursuant to Antitrust Laws; provided the issuance of any such final and nonappealable Order, decree, ruling or other action was not attributable to, and proximately caused by, a failure on the part of the Company to perform in any material respect any covenant or obligation in clause 13 of this Agreement required to be performed by it, or (ii) the Buyer or the Company pursuant to clause 16.1(d) because the Offer Condition set out in clause 4.1.1(b) is not satisfied due to the absence of Antitrust Clearance from the Relevant Antitrust Authorities, or waived, by the Long Stop Date, or as a result of any final and nonappealable Order, decree, ruling or other action or other Law that is either an Antitrust Law or is based upon, promulgated under or issued pursuant to Antitrust Laws (provided the issuance of any such final and nonappealable Order, decree, ruling or other action was not attributable to, and proximately caused by, a failure on the part of the Company to perform in any material respect any covenant or obligation in clause 13 of this Agreement required to be performed by it) and each of the other Offer Conditions has been satisfied at the time of termination or as of the End of the Acceptance Period, as applicable; provided, that (a) failure to satisfy the Offer Condition set out in clause 4.1.1(b) was not proximately caused by a material breach by the Company under clause 13 and (b) no failure of an Offer Condition to be satisfied shall relieve Buyer from its obligation to pay the Reverse Termination Payment if such failure was proximately caused by a material breach by the Buyer under this Agreement (subclause (i) and (ii) hereunder collectively being referred to as "“Antitrust Termination"”). If (A) the Buyer pays the Reverse Termination Payment in accordance with this clause 17.2, and (B) prior to the date that is fifteen (15) months from the date of the Antitrust Termination, the Company or any of its Affiliates enters into a definitive and binding contract that includes all the terms for any transaction specified in the definition of "“Alternative Proposal," ” (whereby for purposes of this clause any reference in the definition of "“Alternative Proposal" ” to "“twenty percent (20%)" ” shall be deemed a reference to "“fifty percent (50%)"”), on terms and conditions that constitute a "“Threshold Value Contract" ” (as defined below) (such transaction, a "“Threshold Value Transaction"”), and (C) such Threshold Value Transaction is subsequently consummated, then the Company shall on the date on which such Threshold Value Transaction is consummated, pay to the Buyer, by wire transfer of immediately available funds, 2.1. Notwithstanding the foregoing, the Buyer shall not be entitled to any repayment of the Reverse Termination Payment or any portion thereof if (i) failure to satisfy the Offer Condition set out in clause 4.1.1(b) was proximately caused by a material breach by the Buyer of clause 13, (ii) following the termination of this Agreement, the Buyer makes a proposal to acquire the Company or knowingly encourages the Company’s management, Managing Board, or Supervisory Board to initiate a process to sell itself that results in the Company or any of its Affiliates entering into a definitive and binding contract that includes all the terms for a Threshold Value Transaction or (iii) the Buyer takes any action to materially delay the Company or its applicable Affiliate from entering into or subsequently consummating the Threshold Value Transaction, including, without limitation, any filing, submission or appeal to a Governmental Authority seeking to delay or impede the transaction underlying the Threshold Value Transaction or initiating any Action with respect to the transaction underlying the Threshold Value Transaction (other than any Action relating in any way to this Agreement or the Transactions).