Common use of Payments; Default Clause in Contracts

Payments; Default. The Parties acknowledge that the agreements contained in this Section 9.3 are an integral part of the Transaction, and that the damages resulting from the termination of this Agreement under circumstances where the Company Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation and that, without these agreements, the Parties would not enter into this Agreement, and, therefore, the Company Termination Fee or Expense Reimbursement, if, as and when required pursuant to this Section 9.3, shall not constitute a penalty, but rather liquidated damages, and in a reasonable amount that will compensate the Party receiving such amount in the circumstances in which it is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transaction. Accordingly, if the Company fails to promptly pay any amount due pursuant to Section 9.3(b) and, in order to obtain such payment, the Purchaser commences a Legal Proceeding that results in a judgment against the Company for the amount set forth in Section 9.3(b) or any portion thereof, the Company will pay to the Purchaser its out-of-pocket costs and expenses (including reasonable attorneys’ fees) in connection with such Legal Proceeding, together with interest on such amount or portion thereof at the annual rate of 5% plus the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable Law (the “Recovery Costs”).

Payments; Default. The Parties acknowledge that (i) the agreements contained in this Section 9.3 8.3 are an integral part of the TransactionTransactions, (ii) each of the Parent Termination Fee and that the damages resulting from the termination of this Agreement under circumstances where the Company Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation and that, without these agreements, the Parties would not enter into this Agreement, and, therefore, the Company Termination Fee or Expense Reimbursement, if, as and when required pursuant to this Section 9.3, shall not constitute a penalty, but rather is liquidated damages, and in a reasonable amount that will compensate the Party receiving such amount Company or Parent, as the case may be, in the circumstances in which it such fee is payable payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactiontransactions contemplated hereby, which amount would otherwise be impossible to calculate with precision and (iii) without these agreements, the Parties would not enter into this Agreement. Accordingly, if the Company either Party fails to promptly pay any amount due pursuant to Section 9.3(b8.3(b) or Section 8.3(c) and, in order to obtain such payment, the Purchaser recipient Party commences a Legal Proceeding that results in a judgment against the Company non-paying Party for the amount set forth in Section 9.3(b) 8.3 or any portion thereof, the Company will non-paying Party shall pay to the Purchaser its recipient Party the recipient Party’s reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) in connection with such Legal Proceeding, together with interest on such amount or portion thereof at the annual rate of 5% plus the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable Law (the “Recovery Costs”)Law.

Payments; Default. The Parties acknowledge that the agreements contained in this Section 9.3 8.4 are an integral part of the TransactionMerger, and that the damages resulting from the termination of this Agreement under circumstances where the Company Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation and that, without these agreements, the Parties would not enter into this Agreement. In light of the difficulty of accurately determining actual losses or damages with respect to the foregoing, and, therefore, the parties acknowledge that the Company Termination Fee or Expense Reimbursement(and any Enforcement Costs, ifif any), as and when required pursuant to this Section 9.3, shall not constitute a penalty, but rather liquidated damages, and in a reasonable amount that will compensate the Party receiving such amount in the circumstances in which such fee and/or costs become payable, constitutes a reasonable estimate of the losses or damages that will be suffered by reason of any such termination of this Agreement and constitutes liquidated damages (in the event it is payable and paid) in a reasonable amount to compensate Parent in the circumstances in which such fee and/or costs are payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactiontransactions contemplated by this Agreement, which amount would otherwise be difficult to calculate with any precision, and is not a penalty. Accordingly, if the Company fails to promptly pay any amount due pursuant to Section 9.3(b8.4(a) and, in order to obtain such payment, the Purchaser Parent commences a Legal Proceeding that results in a judgment against the Company for the amount set forth in Section 9.3(b8.4(a) or any portion thereof, the Company will pay to the Purchaser Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) in connection with such Legal Proceeding, together with interest on such up to a maximum amount or portion thereof at the annual rate of 5% plus the prime rate $500,000.00 (as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually receivedapplicable, or a lesser rate that is the maximum permitted by applicable Law (the “Recovery Company Termination Fee Enforcement Costs”). All payments under this Section 8.4 shall be made by wire transfer of immediately available funds to an account designated in writing by Parent.

Payments; Default. The Parties acknowledge that the agreements contained in this Section 9.3 ‎8.3 are an integral part of the Transaction, Merger and that the damages resulting from the termination each of this Agreement under circumstances where the Company Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation and that, without these agreements, the Parties would not enter into this Agreement, and, therefore, the Company Parent Termination Fee or Expense Reimbursement, if, as and when required pursuant to this Section 9.3, shall is not constitute a penalty, but rather is liquidated damages, and in a reasonable amount that will compensate the Party receiving such amount in Company and the circumstances in which it is payable Company Related Parties or Parent and the Parent Related Parties, as applicable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement Agreement, which amounts would otherwise be impossible to calculate with precision, and on that, without these agreements, the expectation of the consummation of the TransactionParties would not enter into this Agreement. Accordingly, if the Company fails to promptly pay any amount due pursuant to Section 9.3(b‎8.3(b) or Parent fails to promptly pay any amounts due pursuant to Section ‎8.3(c) and, in order to obtain such payment, Parent, on the Purchaser one hand, or the Company, on the other hand, commences a Legal Proceeding that results in a judgment against the Company for the amount set forth in Section 9.3(b‎8.3(b) or any portion thereof or a judgment against Parent for the amount set forth in Section ‎8.3(c) or any portion thereof, as applicable, the Company will shall pay to Parent or Parent shall pay to the Purchaser Company, as the case may be, (a) its out-of-pocket costs and expenses (including reasonable attorneys’ fees) in connection with such Legal Proceeding, together Proceeding and (b) with interest on such amount or portion thereof at the an annual rate of 5equal to 2% plus the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable Law Law; provided, that in no event shall such costs, expenses and interest set forth in the foregoing clauses (a) and (b) exceed $4,000,000 in the “Recovery Costs”)aggregate.

Payments; Default. The Parties acknowledge that the agreements contained in this Section 9.3 8.3 are an integral part of the Viking Transaction, and that the damages resulting from the termination of this Agreement under circumstances where the Company Termination Fee, Change of Recommendation Termination Fee, Acquisition Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation and that, without these agreements, the Parties would not enter into this Agreement, and, therefore, the Company Termination Fee, Change of Recommendation Termination Fee, Acquisition Termination Fee or Expense Reimbursement, if, as and when required to be paid pursuant to this Section 9.38.3, shall not constitute a penalty, but rather liquidated damages, and in a reasonable amount that will compensate the Party receiving such amount in the circumstances in which it is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Viking Transaction. Accordingly, if the Company fails to promptly timely pay any amount due pursuant to Section 9.3(b8.3(b) and, in order to obtain such payment, the Purchaser commences a Legal Proceeding that results in a judgment against the Company for the amount set forth in Section 9.3(b8.3(b) or any portion thereof, the Company will shall pay to the Purchaser its out-of-pocket costs and expenses (including reasonable attorneys’ fees) in connection with such Legal Proceeding, together with interest on such amount or portion thereof at the annual rate of 5% plus the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable Law (the “Recovery Costs”)Law.

Payments; Default. The Parties acknowledge that the agreements contained in this Section 9.3 8.3 are an integral part of the Transaction, Merger and that the damages resulting from the termination each of this Agreement under circumstances where the Company Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation and that, without these agreements, the Parties would not enter into this Agreement, and, therefore, the Company Parent Termination Fee or Expense Reimbursement, if, as and when required pursuant to this Section 9.3, shall is not constitute a penalty, but rather is liquidated damages, and in a reasonable amount that will compensate the Party receiving such amount in Company and the circumstances in which it is payable Company Related Parties or Parent and the Parent Related Parties, as applicable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement Agreement, which amounts would otherwise be impossible to calculate with precision, and on that, without these agreements, the expectation of the consummation of the TransactionParties would not enter into this Agreement. Accordingly, if the Company fails to promptly pay any amount due pursuant to Section 9.3(b8.3(b) or Parent fails to promptly pay any amounts due pursuant to Section 8.3(c) and, in order to obtain such payment, Parent, on the Purchaser one hand, or the Company, on the other hand, commences a Legal Proceeding that results in a judgment against the Company for the amount set forth in Section 9.3(b8.3(b) or any portion thereof or a judgment against Parent for the amount set forth in Section 8.3(c) or any portion thereof, as applicable, the Company will shall pay to Parent or Parent shall pay to the Purchaser Company, as the case may be, its out-of-pocket costs and expenses (including reasonable attorneys’ fees) in connection with such Legal Proceeding, together with interest on such amount or portion thereof at the annual rate of 5% plus the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable Law (the “Recovery Costs”)Law.

Payments; Default. The Parties acknowledge that (i) the agreements contained in this Section 9.3 8.3 are an integral part of the TransactionMerger, (ii) each of the Parent Termination Fee and that the damages resulting from the termination of this Agreement under circumstances where the Company Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation and that, without these agreements, the Parties would not enter into this Agreement, and, therefore, the Company Termination Fee or Expense Reimbursement, if, as and when required pursuant to this Section 9.3, shall not constitute a penalty, but rather is liquidated damages, and in a reasonable amount that will compensate the Party receiving such amount Company or Parent, as the case may be, in the circumstances in which it such fee is payable payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactiontransactions contemplated hereby, which amount would otherwise be impossible to calculate with precision and (iii) without these agreements, the Parties would not enter into this Agreement. Accordingly, if the Company either Party fails to promptly pay any amount due pursuant to Section 9.3(b8.3(b), Section 8.3(c) or Section 8.3(d) and, in order to obtain such payment, the Purchaser recipient Party commences a Legal Proceeding that results in a judgment against the Company non-paying Party for the amount set forth in Section 9.3(b8.3(b), Section 8.3(c) or Section 8.3(d) or any portion thereof, the Company will non-paying Party shall pay to the Purchaser its recipient Party the recipient Party’s out-of-pocket costs and expenses (including reasonable attorneys’ fees) in connection with such Legal Proceeding, together with interest on such amount or portion thereof at the annual rate of 5% plus the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable Law (the “Recovery Costs”)Law.

Payments; Default. The Parties acknowledge that the agreements contained in this Section 9.3 7.3 are an integral part of the TransactionMerger, and that the damages resulting from the termination of this Agreement under circumstances where the Company Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation and that, without these agreements, the Parties would not enter into this Agreement, and, therefore, the Company Termination Fee or Expense Reimbursement, if, as and when required pursuant to this Section 9.3, shall not constitute a penalty, but rather liquidated damages, and in a reasonable amount that will compensate the Party receiving such amount in the circumstances in which it is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transaction. Accordingly, if the Company either Party fails to promptly pay any amount as and when due pursuant to this Section 9.3(b) 7.3 and, in order to obtain such payment, the Purchaser payee Party commences a Legal Proceeding that results in a judgment against the Company payor Party for the amount applicable payment set forth in this Section 9.3(b) 7.3 or any portion thereof, the Company payor Party will pay to the Purchaser payee Party its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the payee Party and its Representatives in connection with such Legal Proceeding, together with interest on the amount of such amount payment or portion thereof accruing at the annual rate of 5% plus equal to the prime rate rate, plus 3% as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through to (but excluding) the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable Law Legal Requirements (collectively, the “Enforcement Expenses”). In no event will the Enforcement Expenses payable by Parent and Merger Sub, on the one hand, or the Company, on the other hand, exceed $4,000,000 (the “Recovery CostsEnforcement Expenses Cap”). All payments under this Section 7.3 shall be made by the payor Party to the payee Party by wire transfer of immediately available funds to an account designated in writing by the payee Party.

Payments; Default. The Parties acknowledge and agree that the agreements contained in this Section 9.3 8.3 are an integral part of the Transaction, and that the damages resulting from the termination of this Agreement under circumstances where the Company Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation Merger and that, without these agreements, the Parties would not enter into this Agreement, and, therefore, the Company Termination Fee or Expense Reimbursement, if, as and when required pursuant to this Section 9.3, shall not constitute a penalty, but rather liquidated damages, and in a reasonable amount that will compensate the Party receiving such amount in the circumstances in which it is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transaction. Accordingly, (i) if the Company fails to promptly pay any amount due pursuant to Section 9.3(b8.3(b) and Section 8.3(d) and, in order to obtain such payment, the Purchaser Parent commences a Legal Proceeding that results in a judgment against the Company for the amount set forth in Section 9.3(b8.3(b) or Section 8.3(d) or any portion thereof, then the Company will pay or cause to be paid to Parent the Purchaser its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) of Parent in connection with such Legal Proceeding, together with interest on such amount or portion thereof at the an annual rate of 5% plus equal to the prime rate (as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made made) plus 5% through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable Law (the “Recovery CostsApplicable Interest Rate”); and (ii) if Parent fails to promptly pay any amount due pursuant to Section 8.3(e) and, in order to obtain such payment, the Company commences a Legal Proceeding that results in a judgment against Parent for the amount of the Parent Termination Fee or any portion thereof, then Parent will pay or cause to be paid to the Company the reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) of the Company in connection with such Legal Proceeding, together with interest on such amount or portion thereof at the Applicable Interest Rate.

Payments; Default. The Parties acknowledge that the agreements contained in this Section 9.3 8.3 are an integral part of the Casdin Transaction, and that the damages resulting from the termination of this Agreement under circumstances where the Company Termination Fee, Change of Recommendation Termination Fee, Acquisition Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation and that, without these agreements, the Parties would not enter into this Agreement, and, therefore, the Company Termination Fee, Change of Recommendation Termination Fee, Acquisition Termination Fee or Expense Reimbursement, if, as and when required to be paid pursuant to this Section 9.38.3, shall not constitute a penalty, but rather liquidated damages, and in a reasonable amount that will compensate the Party receiving such amount in the circumstances in which it is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Casdin Transaction. Accordingly, if the Company fails to promptly timely pay any amount due pursuant to Section 9.3(b8.3(b) and, in order to obtain such payment, the Purchaser commences a Legal Proceeding that results in a judgment against the Company for the amount set forth in Section 9.3(b8.3(b) or any portion thereof, the Company will shall pay to the Purchaser its out-of-pocket costs and expenses (including reasonable attorneys’ fees) in connection with such Legal Proceeding, together with interest on such amount or portion thereof at the annual rate of 5% plus the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable Law (the “Recovery Costs”)Law.

Payments; Default. The Parties acknowledge that the agreements contained in this Section 9.3 8.5 are an integral part of the Transactiontransactions contemplated by this Agreement, and that the damages resulting from the termination of this Agreement under circumstances where the Company Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation and that, without these agreements, the Parties would not enter into this Agreement, and, therefore. In light of the difficulty of accurately determining actual losses or damages with respect to the foregoing, the Company Parties acknowledge that the Parent Termination Fee or Expense Reimbursement(and any Enforcement Costs, ifif any), as and when required pursuant to this Section 9.3, shall not constitute a penalty, but rather liquidated damages, and in a reasonable amount that will compensate the Party receiving such amount in the circumstances in which such fee and/or costs become payable, constitutes a reasonable estimate of the losses or damages that will be suffered by reason of any such termination of this Agreement and constitutes liquidated damages (in the event it is payable and paid) in a reasonable amount to compensate the Company in the circumstances in which such fee and/or costs are payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactiontransactions contemplated by this Agreement, which amount would otherwise be difficult to calculate with any precision, and is not a penalty. Accordingly, if the Company Parent fails to promptly pay any amount due pursuant to Section 9.3(b8.5(a) and, in order to obtain such payment, the Purchaser Company commences a Legal Proceeding that results in a judgment against the Company Parent for the amount set forth in Section 9.3(b8.5(a) or any portion thereof, the Company Parent will pay to the Purchaser Company its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) in connection with such Legal Proceeding, up to a maximum amount of $500,000.00 (as applicable, “Parent Termination Fee Enforcement Costs” and together with interest on such amount or portion thereof at the annual rate of 5% plus the prime rate Company Termination Fee Enforcement Costs, as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually receivedapplicable, or a lesser rate that is the maximum permitted by applicable Law (the “Recovery Enforcement Costs”). All payments under this Section 8.5 shall be made by wire transfer of immediately available funds to an account designated in writing by the Company.