Milestone Closing. (a) Subject to the satisfaction or waiver of the conditions set forth in Sections 6.1 and 6.2 of this Agreement, the Milestone Payment and Milestone Share Purchase shall take place on the date that is five (5) Business Days after the determination of the Milestone Per Share Price (the “Milestone Closing”). (b) At the Milestone Closing, the Company shall deliver to Purchaser a stock certificate representing the Shares being purchased and acquired by Purchaser in the Milestone Share Purchase. The Shares issued at the Milestone Closing shall be Series A Preferred Stock, as set forth in the Certificate of Designation (including a conversion ratio of Preferred Stock into Common Stock as described in the definition of Milestone Per Share Price). (c) At the Milestone Closing, Purchaser shall make payment of the aggregate amount of the Milestone Payment and the Milestone Investment Amount in immediately available funds by wire transfer to an account of the Company designated in writing by the Company. (d) Notwithstanding anything contained in Section 3 (including this Section 3.4) to the contrary, in the event that the Company consummates a Corporate Transaction prior to the Milestone Closing, the Purchaser shall have no obligation to effect the Milestone Share Purchase and such obligations shall terminate and be of no further force and effect. (e) Notwithstanding anything contained in Section 3 (including this Section 3.4) to the contrary, in the event that the Milestone Event does not occur prior to the Expiration Date, the Purchaser shall have no obligation to effect the Milestone Payment and Milestone Share Purchase and such obligations shall terminate and be of no further force and effect, it being understood that the Purchaser shall retain its right to consummate the Milestone Share Purchase and Milestone Payment jointly at its option, subject to the terms and conditions applicable to the Milestone Closing as set forth herein.
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Sources: Securities Purchase Agreement (Tyme Technologies, Inc.), Securities Purchase Agreement (Eagle Pharmaceuticals, Inc.)
Milestone Closing. (a) Subject to the satisfaction or waiver of the conditions set forth in Sections 6.1 and 6.2 of this Agreement, the Milestone Payment and Milestone Share Purchase shall take place on the date that is five (5) Business Days after the determination achievement of the Milestone Per Share Event and either (i) the achievement of the Price Threshold or (ii) the Company’s receipt of a Price Threshold Waiver (the “Milestone Closing Trigger”), the Company shall, within two Business Days thereafter, provide written notice to the Investors of such Milestone Closing Trigger (the “Milestone Event Notice” and the date the Milestone Closing Notice is delivered, the “Milestone Event Notice Date”), and as a result, a milestone closing under this Agreement (the “Milestone Closing”) shall be held. The date of the Milestone Closing (the “Milestone Closing Date”) will be the fifth Business Day after the Milestone Event Notice Date, or such sooner time as may be agreed by the Company and all Investors. At the Milestone Closing, the Company agrees to sell, and each Investor, severally and not jointly, agrees to purchase, the number of Closing Shares equal to (x) the dollar amount set forth opposite such Investor’s name on Exhibit A hereto under the heading “Milestone Closing Subscription Amount” divided by (y) the Share Price, rounded down to the nearest whole Closing Share; provided, however, in the event the number of Closing Shares to be purchased by an Investor at the Milestone Closing would otherwise result in such Investor, together with its Attribution Parties, beneficially owning in excess of 19.99% (or at the Investor’s election, 9.99%) of the outstanding Common Stock immediately after the Milestone Closing (the “Beneficial Ownership Limitation”), then (i) the number of Closing Shares otherwise issuable to such Investor at the Milestone Closing will be reduced by the minimum number of Closing Shares (such number, the “Milestone Overage Number”) that would result in such Investor beneficially owning, together with its Attribution Parties, no more than the Beneficial Ownership Limitation of the outstanding Common Stock immediately after the Milestone Closing, and (ii) in lieu of purchasing the number of Closing Shares equal to such Investor’s Milestone Overage Number, such Investor shall purchase Pre-Funded Warrants exercisable for a number of Pre-Funded Warrant Shares equal to its Milestone Overage Number. Each Investor shall provide such information to the Company as may be reasonably requested in order to determine the number of shares of Common Stock beneficially owned by such Investor. Notwithstanding anything to the contrary in this Agreement, if the Milestone Closing Trigger is caused by a Price Threshold Waiver, only those Investors who signed the Price Threshold Waiver shall be obligated to participate in the Milestone Closing and the non-signing Investors shall have the right but not the obligation to purchase the number of Closing Shares as determined above in this Section 2.2(a).
(b) At the Milestone Closing, each Investor shall pay to an account designated by the Company, by wire transfer of immediately available funds, the amount set forth opposite its name on Exhibit A hereto under the heading “Milestone Closing Subscription Amount” less, if applicable, the product of (x) $0.0001 multiplied by (y) such Investor’s Milestone Overage Number. Subject to receipt of the foregoing payment, the Company shall will (i) instruct the Transfer Agent to credit each Investor the number of Closing Shares purchased by the Investor pursuant to Section 2.2 hereof, (ii) as promptly as practical, deliver, or cause the Transfer Agent to deliver, written evidence of the issuance to the Investor of such Closing Shares on and as of the Milestone Closing Date, and (iii) if applicable, deliver to Purchaser a stock certificate representing such Investor the Shares being Pre-Funded Warrants purchased and acquired by Purchaser in the Milestone Share Purchase. The Shares issued such Investor at the Milestone Closing shall be Series A Preferred Stock, as set forth in the Certificate of Designation (including a conversion ratio of Preferred Stock into Common Stock as described in the definition of Milestone Per Share Price)Closing.
(c) At the Milestone Closing, Purchaser shall make payment of the aggregate amount of the Milestone Payment and the Milestone Investment Amount in immediately available funds by wire transfer to an account of the Company designated in writing by the Company.
(d) Notwithstanding anything contained in Section 3 (including this Section 3.4) to the contrary, in the event that the Company consummates a Corporate Transaction prior to the Milestone Closing, the Purchaser shall have no obligation to effect the Milestone Share Purchase and such obligations shall terminate and be of no further force and effect.
(e) Notwithstanding anything contained in Section 3 (including this Section 3.4) to the contrary, in the event that the Milestone Event does not occur prior to the Expiration Date, the Purchaser shall have no obligation to effect the Milestone Payment and Milestone Share Purchase and such obligations shall terminate and be of no further force and effect, it being understood that the Purchaser shall retain its right to consummate the Milestone Share Purchase and Milestone Payment jointly at its option, subject to the terms and conditions applicable to the Milestone Closing as set forth herein.
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