Common use of Milestone Payment Clause in Contracts

Milestone Payment. Within fifty (50) days after the Sales Milestone Date (subject to Section 7.1(c)), NPS shall make a one-time payment to Takeda equal to thirty million dollars (US$30,000,000) (such payment, the “Milestone Payment”). NPS’s obligation to make the Milestone Payment shall accelerate and be due within fifty (50) days after the occurrence of a Qualifying Change of Control. The Milestone Payment shall be in the form of either or a combination of (x) a wire transfer of immediately available funds to an account designated by Takeda, and/or (y) if the NPS Common Stock is publicly traded on a Trading Market, at NPS’s sole discretion (but subject to the limitations set forth in Section 7.3), the issuance and sale to Takeda GmbH and Takeda Pharma of such number of shares of NPS Common Stock (or shares of common stock of NPS’ successor or such successor’s parent in the event of an acceleration of the Milestone Payment obligation due to a Qualifying Change of Control if the common stock of such successor or such successor’s parent is publicly traded on a Trading Market), equal to the quotient of (A) thirty million dollars (US$30,000,000) divided by (B) the VWAP of the NPS Common Stock (or common stock of NPS’ successor or such successor’s parent in the event of an acceleration of the Milestone Payment obligation due to a Qualifying Change of Control, as applicable) over the thirty trading (30) days immediately prior to (but not including) the Sales Milestone Date or the date of the Qualifying Change of Control, as applicable (such shares, the “Milestone Shares”, and together with the Initial Consideration Shares, the “Shares”). The total number of Milestone Shares shall be allocated between Takeda GmbH and Takeda Pharma in such amounts as shall be notified by Takeda to NPS. If NPS elects to pay the Milestone Payment in the form of Milestone Shares, NPS shall give Takeda written notice of such election at least thirty (30) days before the date NPS wishes to effect the closing of the issuance and sale of the Milestone Shares as contemplated by this Section 7.2 (such closing, the “Milestone Shares Closing”). The Milestone Shares Closing shall take place on or before the date mutually agreed by NPS and Takeda, which date shall be not later than the end of the fifty (50) day period referenced in the first or second sentence of this Section, as applicable (or in the last sentence of Section 7.1(c), if applicable) (the date of the Milestone Shares Closing is referred to herein as the “Milestone Shares Closing Date”).

Milestone Payment. Within fifty (50a) days after In connection with any distribution of the Sales Company Financing Milestone Date (Payment, subject to Section 7.1(c)2.13(b) and Section 2.13(c), NPS shall make a one-time payment without any further action on the part of PubCo, Merger Sub, the Company or any stockholder of the Company or PubCo, subject to Takeda equal Section 2.5(c), each holder of Company Capital Stock outstanding immediately prior to thirty million dollars the Effective Time (US$30,000,000(after giving effect to the conversion of Company Preferred Stock and excluding (i) shares of Company Capital Stock issued pursuant to the Company Financing, (ii) shares to be canceled pursuant to Section 2.5(a)(i), and (iii) Dissenting Shares) (such paymenteach a “Company Milestone Recipient”) shall be entitled to receive the Per Share Company Financing Milestone Consideration. (b) Following the Final Reset Date (as defined in the Securities Purchase Agreement) to the extent PubCo receives any distribution of the PubCo Common Stock held in escrow pursuant to the Escrow Agreement, PubCo shall cause the Exchange Agent to issue the Company Financing Milestone Shares (the “Company Financing Milestone Payment”). NPS’s obligation to make the Milestone Payment shall accelerate and be due within fifty (50) days after the occurrence of a Qualifying Change of Control. The Milestone Payment shall be in the form of either or a combination of (x) a wire transfer of immediately available funds to an account designated by Takeda, and/or (y) if the NPS Common Stock is publicly traded on a Trading Market, at NPS’s sole discretion (but subject to the limitations set forth in Section 7.3)Company Milestone Recipients based upon each such holder’s Per Share Company Financing Milestone Consideration. (c) If the Potentially Transferable Assets Sale Amount has not been received, or any portion thereof, by PubCo within sixty days of the issuance and sale to Takeda GmbH and Takeda Pharma of such number of shares of NPS Common Stock (or shares of common stock of NPS’ successor Closing Date or such successorlater date at the Company’s parent in election, then PubCo may cause the event of an acceleration of Exchange Agent to issue the Asset Milestone Payment obligation due to a Qualifying Change of Control if the common stock of such successor or such successor’s parent is publicly traded on a Trading Market), equal Shares to the quotient of Company Milestone Recipients based upon each such holder’s Per Share Asset Milestone Consideration (A) thirty million dollars (US$30,000,000) divided by (B) the VWAP of the NPS Common Stock (or common stock of NPS’ successor or such successor’s parent in the event of an acceleration of the Milestone Payment obligation due to a Qualifying Change of Control, as applicable) over the thirty trading (30) days immediately prior to (but not including) the Sales Milestone Date or the date of the Qualifying Change of Control, as applicable (such shares, the “Asset Milestone Shares”, Payment” and together with the Initial Consideration Shares, “Company Financing Milestone Payment,” the “SharesMilestone Payments”). . (d) The total number right of any holder of Company Capital Stock to receive any Milestone Shares Payment: (i) does not give such holder dividend rights, voting rights, liquidation rights, preemptive rights or other rights of holders of capital stock of the Surviving Corporation or PubCo or any ownership rights in the assets of the Surviving Corporation or PubCo; (ii) shall not be allocated between Takeda GmbH and Takeda Pharma evidenced by a certificate or other instrument; (iii) shall not be assignable or otherwise transferable by such holder, except (A) to a trust for the benefit of such holder or any member of such holder’s immediate family, (B) by will or intestacy upon death, (C) by instrument to an inter vivos or testamentary trust in such amounts as shall be notified by Takeda to NPS. If NPS elects to pay which the Milestone Payment in is to be passed to beneficiaries upon the form of Milestone Shares, NPS shall give Takeda written notice of such election at least thirty (30) days before the date NPS wishes to effect the closing death of the issuance trustee, (D) pursuant to a court order, (E) by operation of law (including a consolidation or merger), or (F) without consideration in connection with the dissolution, liquidation or termination of any corporation, limited liability company, partnership or other Entity; provided, that any such transferee(s) shall have agreed in writing to be bound by the terms of this Section 2.13; (iv) shall not accrue or pay interest on any portion thereof; and sale (v) does not represent any right other than the right to receive the consideration set forth in this Section 2.13. Any attempted transfer of the right to any Milestone Shares Payment by any holder thereof (other than as contemplated specifically permitted by this Section 7.2 (such closing, the “Milestone Shares Closing”). The Milestone Shares Closing shall take place on or before the date mutually agreed by NPS and Takeda, which date immediately preceding sentence) shall be not later than the end of the fifty (50) day period referenced in the first or second sentence of this Section, as applicable (or in the last sentence of Section 7.1(c), if applicable) (the date of the Milestone Shares Closing is referred to herein as the “Milestone Shares Closing Date”)null and void.

Milestone Payment. Within fifty (50a) days after If the Sales Milestone Date is achieved, the Buyer will, subject to the limitation set forth in Section 2.6(b), have the election to issue the Milestone Shares, subject to the Requisite Approval, pay the equivalent value in cash, valuing such shares at the Milestone Price, or issue and pay a combination of Milestone Shares (subject to the Requisite Approval) and cash (valuing such shares at the Milestone Price) to the Sellers. The Buyer shall deliver the consideration for the achievement of the Milestone to the Sellers, whether in Milestone Shares, cash, or a combination of Milestone Shares and cash within 30 days following the achievement of the Milestone, on a pro rata basis in proportion to the amount allocated to each Seller in accordance with the Allocation Schedule, provided that if Milestone Shares are delivered then, cash or stock shall be payable in respect of any fractional shares of Buyer stock in accordance with Section 7.1(c)), NPS shall make a one2.9. The Milestone Payment is subject to set-time payment off pursuant to Takeda equal Section 8.10. (b) Notwithstanding anything to thirty million dollars the contrary in this Agreement (US$30,000,000including the Buyer’s election pursuant to the second sentence of this Section 2.6(a) (such payment, the “Milestone Payment”). NPS’s obligation to make the Milestone Payment shall accelerate and in Milestone Shares and/or in cash), if the Value of the Stock Consideration would be due within fifty less than 40 percent (5040%) days after of the occurrence Total Consideration (determined without regard to this Section 2.6(b)), then an amount of a Qualifying Change of Control. The the Milestone Payment shall that would otherwise have been paid in cash to Sellers, equal to the amount of cash that would be necessary to cause the Value of Stock Consideration to equal at least 40% of the Total Consideration shall, instead, be paid in shares of stock of the form of either or a combination of (x) a wire transfer of immediately available funds to an account designated by TakedaBuyer, and/or (y) or, if the NPS Common Stock is publicly traded on a Trading MarketRequisite Approval has not been obtained, in Series C Preferred Shares (with each share of stock of Buyer and each Series C Preferred Share valued for this purpose at NPS’s sole discretion the Milestone Price). For this purpose, “Total Consideration” shall mean the sum of: (but subject i) the total cash payable to the limitations set forth Sellers pursuant to this Agreement (including, for the avoidance of doubt, that portion of the Milestone Payment to be paid in cash (if any) and cash to be paid in respect of fractional shares pursuant to Section 7.32.9 (if any), ) in exchange for their Shares and (ii) the issuance and sale to Takeda GmbH and Takeda Pharma of such number aggregate fair market value of shares of NPS Common stock of the Buyer and the Series C Preferred Shares to be delivered to the Sellers pursuant to this Agreement in exchange for their Shares (including, for the avoidance of doubt, that portion of the Milestone Payment to be paid in stock of the Buyer and the Series C Preferred Shares and excluding, for the avoidance of doubt, cash to be paid in respect of fractional shares pursuant to Section 2.9 (if any)) (the “Value of Stock Consideration”). For this purpose, the (or i) “fair market value” of shares of common stock of NPS’ successor or such successor’s parent in the event of an acceleration Buyer shall mean the lowest of the Milestone Payment obligation due to a Qualifying Change of Control if following amounts, as reported on the common stock of such successor or such successor’s parent is publicly traded on a Trading Market), equal to the quotient of NYSE: (A) thirty million dollars the closing Buyer common stock trading price on the Valuation Date (US$30,000,000) divided by as defined herein); (B) the VWAP average between the high and low Buyer common stock trading prices on the Valuation date; and (C) the volume weighted average of the NPS Common Stock (or trading prices of all shares of Buyer common stock traded on the Valuation Date and (ii) “fair market value” of NPS’ successor Series C Preferred Shares shall be as determined by the Board of Directors of the Buyer acting in good faith. “Valuation Date” shall mean the applicable valuation date as Buyer determines is appropriate under Treasury regulation section 1.368-1(e)(2). The intent of the foregoing is to satisfy the continuity of interest requirement with the meaning of Code Section 368, the Treasury Regulations issued thereunder and judicial interpretations thereof. Notwithstanding anything to the contrary herein or such successor’s parent otherwise in this Agreement, (x) in no event shall Buyer be liable to Sellers or any other Person for any Taxes or other liabilities or losses in the event of an acceleration that the purchase of the Milestone Payment obligation due to a Qualifying Change of ControlShares and the Merger, as applicable) over the thirty trading (30) days immediately prior to (but not including) the Sales Milestone Date taken together, or the date of the Qualifying Change of Control, as applicable (such shares, the “Milestone Shares”, and together with the Initial Consideration Shares, the “Shares”). The total number of Milestone Shares shall be allocated between Takeda GmbH and Takeda Pharma in such amounts as shall be notified by Takeda to NPS. If NPS elects to pay the Milestone Payment in the form of Milestone Shares, NPS shall give Takeda written notice of such election at least thirty (30) days before the date NPS wishes to effect the closing of the issuance and sale of the Milestone Shares as any other transaction contemplated by this Agreement, does not qualify as a reorganization under the provisions of Section 7.2 (such closing, the “Milestone Shares Closing”). The Milestone Shares Closing shall take place on or before the date mutually agreed by NPS and Takeda, which date shall be not later than the end 368(a) of the fifty Code, and (50y) day period referenced in no event shall Buyer be required to take the first position that the purchase of the Shares and the Merger, taken together, or second sentence any other transaction contemplated by this Agreement, qualifies as a reorganization under the provisions of this SectionSection 368(a) of the Code or any similar provision of state or local Law, or refrain from taking any position inconsistent with such position, for Tax purposes in any Tax Return or otherwise to the extent it reasonably determines, based on the advice of its tax advisor, that taking such position, or refraining from taking such position, as applicable (or in the last sentence of Section 7.1(c)case may be, if applicable) (the date of the Milestone Shares Closing is referred to herein as the “Milestone Shares Closing Date”)not permitted by Law.

Milestone Payment. Within fifty (50a) days after Subject to Section 3.3(b)(ii) (if applicable), Purchaser shall pay to Sellers the Sales following additional amounts upon the achievement by the Corporation of the following events (each, a "Milestone Event"): (i) $1,312,399, upon the [***] if such event occurs prior to the fifth anniversary of the Closing Date (subject the "First Milestone Payment"); and (ii) $3,062,265, upon the achievement of the [***] if such event occurs prior to Section 7.1(c))the fifth anniversary of the Closing Date (the "Second Milestone Payment" and, NPS shall make a one-time payment to Takeda equal to thirty million dollars (US$30,000,000) (such paymenttogether with the First Milestone Payment, the “Milestone PaymentPayments”). (b) Purchaser shall promptly notify the Sellers after a Milestone Event has been achieved (the "Milestone Notice"). NPS’s obligation to make the The First Milestone Payment and Second Milestone Payment shall accelerate and be due within fifty (50) days after become payable on the occurrence of the events specified in Sections 3.4(a)(i) and 3.4(a)(ii), respectively, and shall be paid within ten (10) days of the Milestone Notice (a Qualifying Change of Control. The "Milestone Payment shall be in the form of either or a combination of (x) a wire transfer of immediately available funds to an account designated by Takeda, and/or (y) if the NPS Common Stock is publicly traded on a Trading Market, at NPS’s sole discretion (but subject to the limitations set forth in Section 7.3Date"), Purchaser shall pay or cause to be paid the issuance and sale corresponding Milestone Payment by issuing to Takeda GmbH and Takeda Pharma of Sellers such number of shares Purchaser Shares as follows: (i) in respect of NPS Common Stock (or shares of common stock of NPS’ successor or such successor’s parent the First Milestone Payment, by issuing to Sellers, in the event proportions set out in Exhibit 2.3, such number of an acceleration of the Milestone Payment obligation due to a Qualifying Change of Control if the common stock of such successor or such successor’s parent is publicly traded on a Trading Market), Purchaser Shares equal to the quotient of (A) thirty million dollars the First Milestone Payment (US$30,000,000) if any), divided by (B) the five (5) trading day VWAP of a Purchaser Share immediately preceding the NPS Common Stock applicable Milestone Payment Date (or common stock rounded down to the nearest whole share); and (ii) in respect of NPS’ successor or such successor’s parent the Second Milestone Payment, by issuing to Sellers, in the event proportions set out in Exhibit 2.3, such number of an acceleration Purchaser Shares equal to (A) the Second Milestone Payment (if any), divided by (B) the five (5) trading day VWAP of a Purchaser Share immediately preceding the applicable Milestone Payment Date (rounded down to the nearest whole share). (c) The Parties agree and acknowledge that the Milestone Payments relate to underlying goodwill of the Milestone Payment obligation due Corporation, the value of which cannot reasonably be expected to a Qualifying Change of Control, as applicablebe agreed upon by the Parties at the Closing Date. (d) over Any payment made pursuant to this Section 3.4 shall constitute an increase to the thirty trading (30) days immediately prior to (but not including) the Sales Milestone Date or the date Purchase Price. Each of the Qualifying Change of Control, as applicable (such shares, Sellers and Purchaser shall report the “Milestone Shares”, and together with the Initial Consideration Shares, the “Shares”). The total number of Milestone Shares shall be allocated between Takeda GmbH and Takeda Pharma in such amounts as shall be notified by Takeda to NPS. If NPS elects to pay the Milestone Payment in the form of Milestone Shares, NPS shall give Takeda written notice of such election at least thirty (30) days before the date NPS wishes to effect the closing of the issuance purchase and sale of the Milestone Purchased Shares as contemplated by in any Tax Returns in accordance with the provisions of this Section 7.2 (such closing, the “Milestone Shares Closing”). The Milestone Shares Closing shall take place on or before the date mutually agreed by NPS and Takeda, which date shall be not later than the end of the fifty (50) day period referenced in the first or second sentence of this Section, as applicable (or in the last sentence of Section 7.1(c), if applicable) (the date of the Milestone Shares Closing is referred to herein as the “Milestone Shares Closing Date”3.4(d).

Milestone Payment. Within fifty (50i) days after So long as Sellers have used commercially reasonable efforts to assist Buyer and the Sales Company in achieving the Milestone Date (Event, subject to offset under Section 7.1(c)10.8, (i) Buyer shall issue to Sellers an aggregate 2,640,000 additional shares of Michicann Stock (which is an aggregate number of shares of such common stock equal to the quotient of $10,000,000, multiplied by a 1.32 exchange rate, and then divided by the Fixed Stock Price), NPS shall make a one-time payment subject to Takeda equal to thirty million dollars applicable escrow agreements (US$30,000,000) (such payment, the “Milestone Payment”), and (ii) only if the Milestone Event is achieved during calendar year 2020, Buyer shall pay to Sellers in the aggregate an additional $5,000,000 cash payment (the “Additional Milestone Payment”), upon the achievement by or on behalf of Buyer and the Company of the following (the “Milestone Event”): If by the date which is twelve (12) months following the Closing, the State of Illinois Department of Agriculture and/or such other applicable regulatory authorities (acceptable to Buyer) shall have issued to the Company a commercial cultivation center license for the Illinois Facility, which license permits a minimum of 200,000 square feet of cultivation of cannabis products, including the packaging and processing of cannabis. (ii) Buyer shall promptly notify Sellers after the Milestone Event has been achieved. NPS’s obligation Within five (5) Business Days of notification by Buyer to make Sellers of the realization of the Milestone Event (but in no event less than ten (10) days following realization of the Milestone Event), Buyer shall (i) if the RTO is not yet completed at such time, issue the Milestone Payment shall accelerate in Michicann Stock to the account or accounts designated by Sellers on Schedule 2.2, subject to and be due within fifty (50) days after the occurrence conditioned upon Sellers executing an escrow agreement, which will require that 20% of a Qualifying Change of Control. The such Milestone Payment shall be is held in escrow for the form later of either or a combination of (x) a wire transfer of immediately available funds to an account designated by Takeda, and/or (y) if the NPS Common Stock is publicly traded on a Trading Market, at NPS’s sole discretion (but subject to the limitations set forth in Section 7.3), the issuance and sale to Takeda GmbH and Takeda Pharma of such number of shares of NPS Common Stock (or shares of common stock of NPS’ successor or such successor’s parent in the event of an acceleration of the Milestone Payment obligation due to a Qualifying Change of Control if the common stock of such successor or such successor’s parent is publicly traded on a Trading Market), equal to the quotient of (A) thirty million dollars (US$30,000,000) divided by (B) the VWAP of the NPS Common Stock (or common stock of NPS’ successor or such successor’s parent in the event of an acceleration of the Milestone Payment obligation due to a Qualifying Change of Control, as applicable) over the thirty trading (30) days immediately prior to (but not including) the Sales Milestone Date 12 months after Closing or the date of the Qualifying Change closure of Controlthe LUST Matter in accordance with this Agreement, as applicable or (such sharesii) if the RTO has previously been completed, the “Milestone Shares”, and together with the Initial Consideration Shares, the “Shares”). The total number of Milestone Shares shall be allocated between Takeda GmbH and Takeda Pharma issue RWB Stock to Sellers in such amounts as shall be notified by Takeda to NPS. If NPS elects to pay exchange for the Milestone Payment in (which for clarity, was 2,640,000 shares of Michicann Stock) at the form same exchange ratio that was available to other common stock holders of Milestone SharesMichicann Stock upon the original RTO closing, NPS shall give Takeda written notice of such election at least thirty subject to any applicable RTO exchange procedures, and subject to and conditioned upon Sellers executing a mutually agreeable lock-up escrow agreement with Buyer, which will require a lock-up period expiring no later than six (306) days before months following the date NPS wishes to effect the closing Closing Date for all of the issuance and sale RWB Stock so issued (and, in any event, full lock-up in escrow of 20% of the Milestone Shares as contemplated by this Section 7.2 (such closing, RWB Stock for the “Milestone Shares Closing”). The Milestone Shares later of 12 months after Closing shall take place on or before the date mutually agreed by NPS and Takeda, which date shall be not later than the end of the fifty (50) day period referenced in the first or second sentence of this Section, as applicable (or in the last sentence of Section 7.1(c), if applicable) (the date of the closure of the LUST Matter in accordance with this Agreement), and subject to the foregoing, will provide for the release of the RWB Stock to Sellers in accordance with a distribution schedule, with such legends as required by applicable securities laws. Buyer shall deposit directly with the escrow agent all shares of Michicann Stock or RWB Stock, as applicable, with the escrow agent accordingly in connection with realization of the Milestone Shares Closing Event. Additionally, if the Milestone Event is referred achieved in accordance with this Agreement during calendar year 2020, Buyer shall also pay to herein as Sellers the “Additional Milestone Shares Closing Date”)Payment by wire transfer in immediately available funds during the time period set forth above. (iii) Upon Buyer’s payment of the Milestone Payment and any applicable Additional Milestone Payment, if any, all amounts due by Buyer under this Agreement with respect to the Milestone Event will be deemed paid in full.