Common use of Milestone Payment Procedures Clause in Contracts

Milestone Payment Procedures. (i) Within three (3) Business Days of the occurrence of a Milestone, Parent shall provide written notice of such Milestone (a “Milestone Notice”) to the Members’ Representative and, if Parent is then a Reporting Company and any material non-public information (“MNPI”) is included in the Milestone Notice or otherwise provided by or on behalf of Parent to the Members’ Representative in connection with the Milestone Notice, contemporaneously file with the SEC a Current Report on Form 8-K disclosing such MNPI. In any Milestone Notice, Parent may make an irrevocable election to pay some or all of the applicable Milestone Payment in Freely Tradeable Shares; provided that, if only a portion of the Milestone Payment will be made in Freely Tradeable Shares (and/or Parent Share Warrants), the Freely Tradeable Shares (and/or Parent Share Warrants) shall be allocated to the Contingent Payment Holders on a pro rata basis, based upon their respective Pro Rata Shares of the Milestone Payment; provided, further, that, in no event shall Parent be entitled to issue Freely Tradeable Shares (and/or Parent Share Warrants) in respect of any Milestone Payment in connection with any Milestone (or contemporaneously occurring Milestones), (i) if Parent is not then a Reporting Company or is delinquent in any of its filing obligations as a Reporting Company, or if the issuance of Freely Tradeable Shares and/or Parent Share Warrants (or Freely Tradeable Shares issuable upon exercise of such Parent Share Warrants) would, assuming the maximum number of shares of Common Stock issuable in the Convertible Note Offering (as defined in the Merger Agreement) and the Merger Agreement have been issued, and when aggregated with any shares of Common Stock issued hereunder together with any transactions aggregated with the foregoing, require the vote or approval of shareholder of Parent in accordance with Nasdaq listing rules or otherwise, (ii) if the Parent Shares are not listed then listed on the Global Select Market and Parent has not received any notice of any failure to meet any listing standard of the Nasdaq Stock Market LLC that has not been cured and publicly announced as such, or is otherwise not in compliance with the requirements for continued listing of the Parent Shares on the Nasdaq Global Market, (iii) if Parent, the Surviving Company or any of their Affiliates are, upon issuance of such Parent Shares will be, in material breach of any of their obligations under this Agreement, the Merger Agreement or the Registration Rights Agreement (including, for the avoidance of doubt, any provisions hereof or thereof in respect of MNPI), or (iv) to the extent such Freely Tradable Shares would represent more than ten percent (10%) of the Parent Shares that are issued and outstanding immediately prior to the date such Milestone(s) occurred. For the avoidance of doubt, if Parent does not make any such election, it will be obligated to make the Milestone Payment entirely in cash. To the extent that Parent makes an election to pay any of a Milestone Payment in Freely Tradeable Shares (and is permitted to do so hereunder), Parent shall, not earlier than the third (3rd), and not later than the seventh (7th), Business Day following the occurrence of the Milestone, issue (or cause to be issued) to each Contingent Payment Holder (or its designee), pursuant to the Deposit/Withdrawal at Custodian (DWAC) system of The Depository Trust Company, a number of Freely Tradeable Shares equal to (x) the dollar amount to be paid in Parent Shares divided by (y) the Weighted Average Price in respect of such Milestone; provided, however, that, at any time on or prior to the second (2nd) Business Day of the delivery of a Milestone Notice, a Contingent Payment Holder may elect, by written notice to Parent (which notice may contain an election in respect of any one or more future Milestones, subject to subsequent withdrawal by such Contingent Payment Holder’s written notice thereof), to receive, in lieu of any of the Freely Tradeable Shares it is so entitled to receive in connection with Milestone, a Parent Share Warrant exercisable for such number of Freely Tradeable Shares. Within thirty (30) calendar days of the occurrence of any Milestone, Parent shall pay (or cause to be paid) to each Contingent Payment Holder such Contingent Payment Holder’s Pro Rata Share of the Milestone Payment in cash, except to the extent all or any portion of such Milestone Payment has been satisfied in Freely Tradeable Shares (and/or Parent Share Warrants) as provided above. (ii) If any Milestone Payment is not paid or issued by Parent as and when due and payable or issuable hereunder, the dollar amount of such Milestone Payment shall bear interest at the prime rate as published by Citibank, N.A. in effect on the latest date such payment was required to be made plus three and one half percent (3.5%) per annum; provided, however, in the event of a bona fide dispute about whether the Milestone Payment is payable, interest shall not accrue during such period in which the matter is being contested in good faith, and will instead accrue commencing upon resolution of the dispute until payment.

Milestone Payment Procedures. Within five (i5) Within Business Days following the Stockholder Representative’s receipt of notice from Buyer (or, in the case of a Net Sales Milestone, if applicable, subject to a final determination by the Independent Auditor pursuant to an audit described in Section 3.10(c)(ii)) that either the Approval Milestone or a Net Sales Milestone has been achieved, or, if applicable, that a Milestone Acceleration or Continuation Event has occurred and Buyer has elected to pay an Acceleration Payment with respect to a particular Milestone, Buyer shall deliver to the Exchange Agent, by wire transfer of immediately available funds or in Buyer Ordinary Shares (as the case may be), the applicable Milestone Payment Amount payable in connection with the occurrence of such event pursuant to the terms of this Agreement, for distribution to the Pre-Closing Holders who have complied with Sections 3.2(b), 3.2(c) and 3.2(d), as applicable (provided, that, notwithstanding anything herein to the contrary, in lieu of any Buyer Ordinary Shares otherwise issuable in respect of Company Options or the Company Warrant, or to any Cash-Out Holder, as a Milestone Payment a cash amount equal to the number of such Buyer Ordinary Shares multiplied by the Milestone Share Price shall be paid, and provided further that amounts payable in respect of Company Options shall be paid by the Exchange Agent to the Final Surviving Corporation for payment through its payroll system within three (3) Business Days of the occurrence of a Milestone, Parent shall provide written notice of date the Exchange Agent delivers such Milestone (a “Milestone Notice”) funds to the Members’ Representative Final Surviving Corporation), and, if Parent is then a Reporting Company and applicable, any material non-public information (“MNPI”) is included recipients of Transaction Expenses, in accordance with an updated Payment Spreadsheet to be provided by the Stockholder Representative to the Exchange Agent; provided, in the Milestone Notice or otherwise provided by or on behalf of Parent to the Members’ Representative in connection with the Milestone Notice, contemporaneously file with the SEC a Current Report on Form 8-K disclosing such MNPI. In any Milestone Notice, Parent may make an irrevocable election to pay some or all of the applicable Milestone Payment in Freely Tradeable Shares; provided that, if only a portion case of the Milestone Payment will be made in Freely Tradeable Shares (and/or Parent Share Warrants)for the Approval Milestone, that if the Freely Tradeable Shares (and/or Parent Share Warrantsdeadline under this Section 3.10(d) shall be allocated for delivery of such Milestone Payment would otherwise occur prior to the Contingent Payment Holders on a pro rata basis, based upon their respective Pro Rata Shares end of the Milestone Payment; providedShare Price Measurement Period, further, that, in no event shall Parent be entitled the deadline for Buyer to issue Freely Tradeable Shares (and/or Parent Share Warrants) in respect of any deliver such Milestone Payment in connection with any Milestone (or contemporaneously occurring Milestones), (i) if Parent is not then a Reporting Company or is delinquent in any of its filing obligations as a Reporting Company, or if the issuance of Freely Tradeable Shares and/or Parent Share Warrants (or Freely Tradeable Shares issuable upon exercise of such Parent Share Warrants) would, assuming the maximum number of shares of Common Stock issuable in the Convertible Note Offering (as defined in the Merger Agreement) and the Merger Agreement have been issued, and when aggregated with any shares of Common Stock issued hereunder together with any transactions aggregated with the foregoing, require the vote or approval of shareholder of Parent in accordance with Nasdaq listing rules or otherwise, (ii) if the Parent Shares are not listed then listed on the Global Select Market and Parent has not received any notice of any failure to meet any listing standard of the Nasdaq Stock Market LLC that has not been cured and publicly announced as such, or is otherwise not in compliance with the requirements for continued listing of the Parent Shares on the Nasdaq Global Market, (iii) if Parent, the Surviving Company or any of their Affiliates are, upon issuance of such Parent Shares will be, in material breach of any of their obligations under this Agreement, the Merger Agreement or the Registration Rights Agreement (including, for the avoidance of doubt, any provisions hereof or thereof in respect of MNPI), or (ivSection 3.10(d) to the extent such Freely Tradable Shares would represent more than ten percent (10%) of the Parent Shares that are issued and outstanding immediately prior to the date such Milestone(s) occurred. For the avoidance of doubt, if Parent does not make any such election, it will shall instead be obligated to make the Milestone Payment entirely in cash. To the extent that Parent makes an election to pay any of a Milestone Payment in Freely Tradeable Shares (and is permitted to do so hereunder), Parent shall, not earlier than the third (3rd), and not later than the seventh (7th), Business Day following the occurrence of the Milestone, issue (or cause to be issued) to each Contingent Payment Holder (or its designee), pursuant to the Deposit/Withdrawal at Custodian (DWAC) system of The Depository Trust Company, a number of Freely Tradeable Shares equal to (x) the dollar amount to be paid in Parent Shares divided by (y) the Weighted Average Price in respect of such Milestone; provided, however, that, at any time on or prior to the second (2nd) Business Day of following the delivery of a Milestone Notice, a Contingent Payment Holder may elect, by written notice to Parent (which notice may contain an election in respect of any one or more future Milestones, subject to subsequent withdrawal by such Contingent Payment Holder’s written notice thereof), to receive, in lieu of any of the Freely Tradeable Shares it is so entitled to receive in connection with Milestone, a Parent Share Warrant exercisable for such number of Freely Tradeable Shares. Within thirty (30) calendar days of the occurrence of any Milestone, Parent shall pay (or cause to be paid) to each Contingent Payment Holder such Contingent Payment Holder’s Pro Rata Share of the Milestone Payment in cash, except to the extent all or any portion expiration of such Milestone Payment has been satisfied in Freely Tradeable Shares (and/or Parent Share Warrants) as provided abovePrice Measurement Period. (ii) If any Milestone Payment is not paid or issued by Parent as and when due and payable or issuable hereunder, the dollar amount of such Milestone Payment shall bear interest at the prime rate as published by Citibank, N.A. in effect on the latest date such payment was required to be made plus three and one half percent (3.5%) per annum; provided, however, in the event of a bona fide dispute about whether the Milestone Payment is payable, interest shall not accrue during such period in which the matter is being contested in good faith, and will instead accrue commencing upon resolution of the dispute until payment.