Common use of Milestone Consideration Clause in Contracts

Milestone Consideration. In partial consideration of the license and other rights granted herein and subject to the terms and conditions set forth in this Agreement, upon achievement after the Effective Date of any milestone event listed below (each a “Milestone Event”), Myriad shall pay a milestone consideration (each a “Milestone Consideration”) to Licensor within thirty (30) days following achievement of such Milestone Event; provided, however, that the Milestone Consideration payable in connection with the Fourth Milestone Event shall be payable within ninety (90) days following the achievement of the Fourth Milestone Event, all in accordance with the following: For clarification, each Milestone Consideration shall be payable only for the first occurrence of each corresponding Milestone Event achieved in respect of the Licensed Product. At Myriad’s sole discretion, up to One Hundred Percent (100%) of each Milestone Consideration payable to Licensor may be in the form of a cash investment by Myriad in shares of Series B Preferred Stock, $.001 par value per share, of the Licensor (the “Series B Preferred Stock”); provided, however, that Myriad shall purchase not less than the minimum number of Series B Preferred Stock as is provided for in the Stock Purchase Agreement. The purchase price for each such investment shall be fully credited on a dollar-for-dollar basis against such Milestone Consideration. Any investments to be made by Myriad in Series B Preferred Stock of Licensor under this Section 4.2 shall be pursuant to the Stock Purchase Agreement. The First Milestone Event shall result in the Second Closing, as defined in the Stock Purchase Agreement. The Second Milestone Event shall result in the Third Closing, as defined in the Stock Purchase Agreement. The Third Milestone Event shall result in the Fourth Closing, as defined in the Stock Purchase Agreement. The Fourth Milestone Event shall result in the Fifth Closing, as defined in the Stock Purchase Agreement. of each such Milestone Consideration shall, at the sole discretion of Licensor, be payable in the form of cash, or any combination of cash and Myriad common stock. The value of any such Myriad common stock used to pay any Milestone Consideration shall be equal to the Fair Market Value of such common stock.

Milestone Consideration. In partial consideration of the license and other rights granted herein and subject to the terms and conditions set forth in this Agreement, upon achievement after the Effective Date of any milestone event listed below (each a “Milestone Event”), Myriad shall pay a milestone consideration (each a “Milestone Consideration”a) to Licensor within thirty (30) Within twenty days following achievement of such the Milestone Event; providedduring the Payment Term, howeverParent shall notify the Securityholders’ Representative that the Milestone has been achieved, that and no later than 30 days following the date of the achievement of the Milestone (subject to delivery and finalization (in accordance with Section 1.16(f) (Exchange/Payment)) of the updated Closing Payment Schedule as set forth in the next sentence), Parent shall deliver, or cause to be delivered, to the Participating Securityholders or the Payment Agent and/or Merger Sub II Surviving Company for the benefit of the Participating Securityholders, in Parent’s sole discretion, pursuant to the distribution mechanics set forth in Section 1.5 (Conversion of Shares), Section 1.6 (Treatment of Company Options) and Section 1.16 (Exchange Payment), as applicable, the Milestone Consideration. Promptly following receipt of notice of achievement of the Milestone and prior to delivery of any Milestone Consideration to the Participating Securityholders, the Securityholders’ Representative shall deliver to Parent an updated Closing Payment Schedule (which need not be certified) setting forth the portion of the Milestone Consideration payable in connection with the Fourth to each Participating Securityholder. The Milestone Event Consideration shall only be payable within ninety (90) days following once, upon the achievement first occurrence of the Fourth Milestone EventMilestone, all and no additional payment will be due in accordance with the following: For clarification, each event of any repeated occurrence of the Milestone. No Milestone Consideration shall be payable with respect to the Milestone if first achieved after the end of the Payment Term. (b) Each Participating Securityholder, by such Person’s execution of a Joinder Agreement, a Letter of Transmittal, a Surrender Agreement, as applicable, and/or receipt of any Merger Consideration hereunder, acknowledges and agrees that (i) Parent is entitled to conduct the business of the Merger I Surviving Corporation and the Merger II Surviving Company, as applicable, including, without limitation, with respect to any BioDiscovery Products in a manner that is in the best interests of Parent and its stockholders, and shall have the absolute right and sole and absolute discretion to operate and otherwise make decisions with respect to the conduct of the business of the Merger I Surviving Corporation and the Merger II Surviving Company and/or the BioDiscovery Products and to take or refrain from taking any action with respect thereto; (ii) Parent or an Affiliate of Parent currently or may in the future offer products or services that compete, either directly or indirectly, with the BioDiscovery Products and may make decisions with respect to such products and services that may adversely affect the BioDiscovery Products and the products, services, sales, revenues, expenses, or other financial performance measures of the Merger I Surviving Corporation or the Merger II Surviving Company or the BioDiscovery Products; and (iii) neither Parent nor any of its Affiliates shall have any liability to any Participating Securityholder or any other Person for any claim, loss or damage of any nature, including claims, losses or damages that arise out of or relate in any way to any decisions or actions affecting whether or not or the extent to which any Milestone Consideration becomes payable in accordance with this Section 1.18 (Milestone Consideration), unless and only to the extent that it takes any action intended for the first occurrence primary purpose of each corresponding Milestone Event achieved in respect frustrating the payment of the Licensed Product. At Myriad’s sole discretion, up to One Hundred Percent (100%) of each Milestone Consideration payable hereunder. Parent’s maximum aggregate liability for any and all breaches by Parent of its obligations under this Section 1.18 (Milestone Consideration) shall be limited to Licensor may be in the form of a cash investment by Myriad in shares of Series B Preferred Stockunpaid portion, $.001 par value per shareif any, of the Licensor (Milestone Consideration for the “Series B Preferred Stock”); providedMilestone, however, that Myriad shall purchase not less than plus the minimum number reasonable attorneys’ fees and costs of Series B Preferred Stock as is provided for experts incurred by the Securityholders’ Representative in enforcing the Stock Purchase Agreement. The purchase price for each such investment shall be fully credited on a dollar-for-dollar basis against such Milestone Consideration. Any investments to be made by Myriad in Series B Preferred Stock of Licensor Participating Securityholders’ rights under this Section 4.2 1.18 (Milestone Consideration), and neither Parent nor any of its Affiliates shall have any other liability hereunder to any Participating Securityholder or any other Person for any claim, loss or Damage of any nature, including claims, losses or Damages that arise out of or relate in any way to any decisions or actions affecting whether or not or the extent to which the Milestone Consideration becomes payable in accordance with this Section 1.18 (Milestone Consideration). Notwithstanding anything to the contrary contained herein, none of Parent nor any of its Affiliates shall take any action primarily designed to prevent any payment of the Milestone. (c) The right of any Participating Securityholder to receive any Per Share Milestone Consideration (i) shall not be evidenced by a certificate or other instrument, (ii) shall not be assignable or otherwise transferable by such Participating Securityholder other than by will, upon death or by operation of Law and (iii) does not represent any right other than the right to receive the Per Share Milestone Consideration pursuant to this Agreement. Any attempted transfer of the right to any amounts with respect to any such issuance by any holder thereof (other than as specifically permitted by the immediately preceding sentence) shall be pursuant null and void. (d) Any distribution of the Milestone Consideration, if any, to the Stock Purchase Agreement. The First Milestone Event shall result in the Second Closing, as defined in the Stock Purchase Agreement. The Second Milestone Event shall result in the Third Closing, as defined in the Stock Purchase Agreement. The Third Milestone Event shall result in the Fourth Closing, as defined in the Stock Purchase Agreement. The Fourth Milestone Event shall result in the Fifth Closing, as defined in the Stock Purchase Agreement. of each such Milestone Consideration shall, at the sole discretion of Licensor, be payable in the form of cash, or any combination of cash and Myriad common stock. The value of any such Myriad common stock used to pay any Milestone Consideration Participating Securityholders shall be equal subject to the Fair Market Value of such common stockSection 8.8 (Right to Satisfy Indemnification Claims by Reducing Contingent Payments).