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: Milestone Event Milestone Consideration --------------- ----------------------- [ ] 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. Fifty percent (50%) 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.
Appears in 1 contract
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: Milestone Event Milestone Consideration --------------- ----------------------- [ ] 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 ’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. Fifty percent (50%) 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.
Appears in 1 contract
Samples: License and Collaboration Agreement (Myriad Genetics Inc)
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 Please be advised that 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 cash will be delivered via check to the address of record on file 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: Milestone Event Exchange Agent. If you would like to request that any Milestone Consideration --------------- ----------------------- [ ] For clarificationbe delivered via a different payment method (e.g. wire), each Milestone Consideration shall be payable only for you must provide the first occurrence Stockholders Representative revised payment instructions (including any updates or corrections to the information previously provided in your completed Letter of each corresponding Milestone Event achieved in respect of the Licensed Product. At Myriad's sole discretion, up to One Hundred Percent (100%Transmittal) 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 five Business Days following receipt of a Milestone Notice (as such term is defined in the minimum Merger Agreement) from the Stockholders Representative. All questions as to the validity, form and eligibility of any surrender of certificates will be determined by the Exchange Agent and Kolltan Pharmaceuticals, Inc. and such determination shall be final and binding. Exchange Agent and the Company reserve the right to waive any irregularities or defects in the surrender of any certificates. A surrender will not be deemed to have been made until all irregularities have been cured or waived. The Form W-9 BELOW must be completed and signed if you are a U.S. person (including a U.S. resident alien). PLEASE PROVIDE YOUR SOCIAL SECURITY NUMBER OR OTHER TAXPAYER IDENTIFICATION NUMBER (“TIN”) AND CERTIFY THAT YOU ARE NOT SUBJECT TO BACKUP WITHHOLDING. NOTE: FAILURE TO COMPLETE AND RETURN AN PROPERLY COMPLETED FORM W-9 OR FORM W-8 MAY RESULT IN BACKUP WITHHOLDING OF A PORTION OF ANY PAYMENT MADE TO YOU PURSUANT TO THE MERGER. Under current U.S. federal income tax law, a Kolltan Pharmaceuticals, Inc. stockholder who tenders Kolltan Pharmaceuticals, Inc. stock certificates that are accepted for exchange may be subject to backup withholding (currently at a 28% rate). If the stockholder is a U.S. person, in order to avoid such backup withholding, the stockholder must provide the Exchange Agent with such stockholder’s correct taxpayer identification number (“TIN”) and provide certain certifications, including a certification as to the correctness of the TIN and that such stockholder is not subject to such backup withholding, by completing the Form W-9 provided herewith. In general, if a stockholder is an individual, the TIN is the Social Security number or individual taxpayer identification number of Series B ------- Preferred Stock as is provided for such individual, and, in the Stock Purchase Agreementcase of an entity, is the stockholder’s Employer Identification Number. The purchase price If the stockholder does not have a TIN, such stockholder should obtain Form SS-4 or W-7, as applicable, apply for each a TIN on such investment shall applicable Form, and receive a TIN prior to submitting the Form W-9. If the Exchange Agent is not provided with the correct taxpayer identification number, the stockholder may be fully credited subject to a $50 penalty imposed by the Internal Revenue Service, in addition to backup withholding. For further information concerning backup withholding and instructions for completing the Form W-9 (including how to obtain a taxpayer identification number if you do not have one and how to complete the W-9 if the Kolltan Pharmaceuticals, Inc. stock certificates are held in more than one name), consult the General Instructions to the Form W-9 and/or your tax advisor. Certain stockholders (including, among others, all corporations) are not subject to these backup withholding and reporting requirements. To prevent possible erroneous backup withholding, an exempt stockholder should provide its exempt payee code on the Form W-9. A stockholder that is not a dollarU.S. person must submit an appropriate and properly completed Form W-8BEN, W-8BEN-forE, W-8ECI, W-8EXP or W-8IMY (and all required attachments), as the case may be, signed under penalties of perjury attesting to such non-dollar basis against such Milestone ConsiderationU.S. status. Any investments Such forms and instructions may be obtained from the IRS at: xxx.xxx.xxx. Failure to complete the Form W-9 or appropriate Form W-8 will not, by itself, cause the Kolltan Pharmaceuticals, Inc. stock certificates to be deemed invalidly tendered, but may require the Exchange Agent to withhold a portion of the amount of any payments made by Myriad in Series B Preferred Stock of Licensor under this Section 4.2 shall be pursuant to the Stock Purchase Agreementmerger. The First Milestone Event shall result Backup withholding is not an additional federal income tax. Rather, the federal income tax liability of a person subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund may be obtained provided that 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. Fifty percent (50%) 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 required information is furnished to the Fair Market Value of such common stockInternal Revenue Service. NOTE: FAILURE TO COMPLETE AND RETURN THE FORM W-9 (OR APPROPRIATE FORM W-8) MAY RESULT IN BACKUP WITHHOLDING OF A PORTION OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE MERGER.
Appears in 1 contract
Milestone Consideration. In partial consideration Please be advised that to the extent Milestone Consideration is payable in shares of Capnia, Inc. stock, a stock certificate representing those shares will be registered in the name of the license person signing this Letter of Transmittal and other rights granted herein and subject delivered to the terms and conditions set forth address of record on file with the Exchange Agent. Please be further advised that any Milestone Consideration Table of Contents payable in this Agreement, upon achievement after cash will be delivered via check to the Effective Date address of record on file with the Exchange Agent. If you would like to request that any milestone event listed below Milestone Consideration be delivered either to a different address or (each a "Milestone Event"), Myriad shall pay a milestone consideration (each a "Milestone Consideration") to Licensor within thirty (30) days following achievement in the case of such Milestone Event; provided, however, that the -------- ------- Milestone Consideration payable in connection with cash) via a different payment method (e.g. wire), you must provide the Fourth Milestone Event shall be payable within ninety Stockholders’ Representative revised payment instructions (90including any updates or corrections to the information previously provided in your completed Letter of Transmittal) days following the achievement of the Fourth Milestone Event, all in accordance with the following: Milestone Event Milestone Consideration --------------- ----------------------- [ ] 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 five Business Days in following receipt of Notice of Milestone Achievement from the minimum number Stockholders Representative. All questions as to the validity, form and eligibility of Series B ------- Preferred Stock as is provided for any surrender of certificates will be determined by the Exchange Agent and Capnia, Inc. and such determination shall be final and binding. Exchange Agent and the Company reserve the right to waive any irregularities or defects 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. Fifty percent (50%) 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 surrender of any such Myriad common stock used certificates. A surrender will not be deemed to pay any Milestone Consideration shall have been made until all irregularities have been cured or waived. Table of Contents The Substitute Form W-9 BELOW must be equal to completed and signed if you are a U.S. person (including a U.S. resident alien). PLEASE PROVIDE YOUR SOCIAL SECURITY NUMBER OR OTHER TAXPAYER IDENTIFICATION NUMBER (“TIN”) AND CERTIFY THAT YOU ARE NOT SUBJECT TO BACKUP WITHHOLDING. PAYER’S NAME: American Stock Transfer & Trust Company, LLC SUBSTITUTE FORM W-9 Department of the Fair Market Value Treasury Internal Revenue Service Part 1 — PLEASE PROVIDE YOUR TIN IN THE BOX AT RIGHT AND CERTIFY BY SIGNING AND DATING BELOW Social Security Number OR Employer Identification Number Part 2 — FOR PAYEES EXEMPT FROM BACKUP WITHHOLDING (See Page 2 of such common stock.enclosed Guidelines)
Appears in 1 contract
Samples: Merger Agreement (Capnia, Inc.)
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, however, Parent shall notify the Securityholders’ Representative that the -------- ------- Milestone Consideration payable in connection with the Fourth Milestone Event shall be payable within ninety (90) has been achieved, and no later than 30 days following the date of the achievement of the Fourth Milestone Event, all (subject to delivery and finalization (in accordance with Section 1.16(f) (Exchange/Payment)) of the following: 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 Event Consideration. Promptly following receipt of notice of achievement of the Milestone and prior to delivery of any Milestone Consideration --------------- ----------------------- [ ] For clarificationto 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 to each Participating Securityholder. The Milestone Consideration shall only be payable once, upon the first occurrence of the Milestone, and no additional payment will be due in the 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. Fifty percent (50%) 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).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Bionano Genomics, Inc)
