Common use of Delay Payments Clause in Contracts

Delay Payments. (i) The Company and each Investor each agree that the Investor will suffer damages, and it would not be feasible to ascertain the extent of such damages with precision, if the Company fails to fulfill its obligations under Article III hereof. Subject in all cases to Section 3.3 (including any applicable Blackout Period imposed in accordance therewith) and Section 4.6 (including any Holdback Period imposed in accordance therewith, whether such period is pursuant to the agreement set forth in Section 4.6 or a separate agreement with the underwriters of any Company Offering or Underwritten Offering), if (A) a Registration Statement is not filed on or prior to any Filing Date applicable thereto, (B) a Registration Statement is not declared effective by the SEC or any order of a governmental authority preventing or suspending the use of any prospectus is not lifted prior to any Effective Date applicable thereto, (C) the Company fails to file with the SEC a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act, within five Business Days after the date that the Company is notified in writing by the SEC that a Registration Statement will not be “reviewed,” or is not subject to further review, (D) after the Effective Date, the Shares are not listed on the NYSE, (E) after the Effective Date, a Registration Statement required to be effective hereunder ceases for any reason to remain effective (without being succeeded immediately by a replacement Registration Statement filed and declared effective) or usable (excluding during the Lock-Up Period, and excluding as a result of a post-effective amendment thereto that is required by applicable law in order to cause a Permitted Assignee hereunder to be named as a selling securityholder therein, provided that such post-effective amendment is filed by the Company within 10 Business Days after the Company receiving notice from any Investor that such post-effective amendment is required (any such 10 Business Day period, an “Assignment Period”) for the resale of Registrable Securities, or the Investors are otherwise unable to effect the resale of any Registrable Securities hereunder as a result of a breach by the Company of its obligations hereunder, in each case for such period of time (excluding the duration of any Black Out Period applicable to such Registrable Securities, any Holdback Period, any Assignment Period or the Lock-up Period) as to any Registrable Securities for which any Registration Statement is then required to be effective hereunder (each of the events referred to in clauses (A) through (E), a “Registration Default”) the Company shall pay to any Investor holding any Registrable Securities not eligible for resale as a result of such Registration Default, for the duration of such Registration Default as it applies to such Registrable Securities held by such Investor:

Delay Payments. (i) The Company and each Investor each agree that the Investor will suffer damages, and it would not be feasible to ascertain the extent of such damages with precision, if the Company fails to fulfill its obligations under Article III hereof. Subject in all cases to Section 3.3 (including any applicable Blackout Period imposed in accordance therewith) and Section 4.6 (including any Holdback Period imposed in accordance therewith, whether such period is pursuant to the agreement set forth in Section 4.6 or a separate agreement with the underwriters of any Company Offering or Underwritten Offering), if (A) a Registration Statement is not filed on or prior to any Filing Date applicable thereto, (B) a Registration Statement is not declared effective by the SEC or any order of a governmental authority preventing or suspending the use of any prospectus is not lifted prior to any Effective Date applicable thereto, (C) the Company fails to file with the SEC a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act, within five Business Days after the date that the Company is notified in writing by the SEC that a Registration Statement will not be “reviewed,” or is not subject to further review, (D) after the Effective Date, the Shares are not listed on the NYSE, (E) after the Effective Date, a Registration Statement required to be effective hereunder ceases for any reason to remain effective (without being succeeded immediately by a replacement Registration Statement filed and declared effective) or usable (excluding during the Lock-Up Period, and excluding as a result of a post-effective amendment thereto that is required by applicable law in order to cause a Permitted Assignee hereunder to be named as a selling securityholder therein, provided that such post-post- effective amendment is filed by the Company within 10 Business Days after the Company receiving notice from any Investor that such post-effective amendment is required (any such 10 Business Day period, an “Assignment Period”) for the resale of Registrable Securities, or the Investors are otherwise unable to effect the resale of any Registrable Securities hereunder as a result of a breach by the Company of its obligations hereunder, in each case for such period of time (excluding the duration of any Black Out Period applicable to such Registrable Securities, any Holdback Period, any Assignment Period or the Lock-up Period) as to any Registrable Securities for which any Registration Statement is then required to be effective hereunder (each of the events referred to in clauses (A) through (E), a “Registration Default”) the Company shall pay to any Investor holding any Registrable Securities not eligible for resale as a result of such Registration Default, for the duration of such Registration Default as it applies to such Registrable Securities held by such Investor:

Delay Payments. (i) The Company and each Investor each agree that the any such Investor will suffer damages, and it would not be feasible to ascertain the extent of such damages with precision, if the Company fails to fulfill its obligations under Article III hereofhereunder. Subject in all cases to Section 3.3 5 (including any applicable Blackout Period imposed in accordance therewith) and Section 4.6 (including any Holdback Period imposed in accordance therewith, whether such period is pursuant to the agreement set forth in Section 4.6 or a separate agreement with the underwriters of any Company Offering or Underwritten OfferingPeriod), if (Ai) a Registration Statement is not filed on or prior to any Filing Date applicable theretorequired date hereunder, (Bii) a Registration Statement is not declared effective by the SEC or any order of a governmental authority preventing or suspending the use of any prospectus is not lifted prior to any Effective Date or Effectiveness Date applicable thereto, (Ciii) the Company fails to file with the SEC a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act, within five (5) Business Days after the date that (A) the Company is notified in writing by the SEC that a Registration Statement will not be “reviewed,” or is not subject to further reviewreview and (B) Legal Counsel has given its prior approval to request acceleration of effectiveness pursuant to Section 3(c), or (D) after the Effective Date, the Shares are not listed on the NYSE, (Eiv) after the Effective Date, a Registration Statement required to be effective hereunder ceases for any reason to remain effective (without being succeeded immediately by a replacement Registration Statement filed and declared effective) or usable (excluding during the Lock-Up Period, and excluding as a result of a post-effective amendment thereto that is required by applicable law in order to cause a Permitted Assignee permitted assignee hereunder to be named as a selling securityholder therein, provided that such post-effective amendment is filed by the Company within 10 ten (10) Business Days after the Company receiving notice from any Investor that such post-effective amendment is required (any such 10 ten (10) Business Day period, an “Assignment Period”) for the resale of Registrable Securities, or the Investors are otherwise unable to effect the resale of any Registrable Securities hereunder as a result of a breach by the Company of its obligations hereunder, in each case for such period of time (excluding the duration of any Black Out Period applicable to such Registrable Securities, any Holdback Period, Securities or any Assignment Period or the Lock-up Period) as to any Registrable Securities for which any Registration Statement is then required to be effective hereunder (each of the events referred to in clauses (Ai) through (Eiv), a “Registration Default”) the Company shall pay to any Investor holding any Registrable Securities not eligible for resale as a result of such Registration Default, for the duration of such Registration Default as it applies to such Registrable Securities held by such Investor:Investor an amount equal to one-half percent (0.5%) of the Registrable Securities Purchase Price of such Registrable Securities per thirty (30) days (or portion thereof), payable in cash on the second business day of each calendar month in respect of payments accruing through the last day of the preceding calendar month, with late payments accruing interest at a rate of eighteen percent (18%) per annum (or such lesser maximum amount that is permitted to be paid by applicable law), compounding on each payment date (the payments described in this Section 5(c), the “Liquidated Damages”); provided, however, that the aggregate amount of Liquidated Damages payable by the Company to the Investors, for all Registration Defaults, shall not exceed $900,000. Each of the Company and each Investor agree that the Liquidated Damages provided for in this Section 5 constitute a reasonable estimate of the monetary damages that may be incurred by the Investor by reason of a Registration Default and that such Liquidated Damages are the only monetary damages available to the Investors in the event of a Registration Default. Notwithstanding anything to the contrary set forth in this Section 5, no event shall be considered a Registration Default hereunder if such event or the primary cause thereof (i) was consented to in writing by the Investor Representative or (ii) results (and shall not be considered a Registration Default for as long as it continues to result) solely from any breach or delay in performance by any Investor of any of its obligations set forth in this Agreement.

Delay Payments. (i) The Company and each the Investor each agree that the Investor will suffer damages, and it would not be feasible to ascertain the extent of such damages with precision, if the Company fails to fulfill its obligations under Article III hereofhereunder. Subject in all cases to Section 3.3 10 (including any applicable Blackout Period imposed in accordance therewith) and Section 4.6 (including any Holdback Period imposed in accordance therewith, whether such period is pursuant to the agreement set forth in Section 4.6 or a separate agreement with the underwriters of any Company Offering or Underwritten OfferingPeriod), if (Ai) a Registration Statement is not filed on or prior to any Filing Date applicable theretorequired date hereunder, (Bii) a Registration Statement is not declared effective by the SEC or any order of a governmental authority preventing or suspending the use of any prospectus is not lifted prior to any Effective Effectiveness Date applicable thereto, (Ciii) the Company fails to file with the SEC a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act, within five Business Days (5) business days after the date that (A) the Company is notified in writing by the SEC that a Registration Statement will not be “reviewed,” or is not subject to further review, review and (DB) the Investor has given its prior approval to request acceleration of effectiveness pursuant to Section 3.2 after the Effective Date, the Shares are not listed on the NYSE, (E) after the Effective Agreement Date, a Registration Statement required to be effective hereunder ceases for any reason to remain effective (without being succeeded immediately by a replacement Registration Statement filed and declared effective) or usable (excluding during the Lock-Up Period, and excluding as a result of a post-effective amendment thereto that is required by applicable law in order to cause a Permitted Assignee permitted assignee hereunder to be named as a selling securityholder therein, provided that such post-effective amendment is filed by the Company within 10 ten (10) Business Days after the Company receiving notice from any the Investor that such post-effective amendment is required (any such 10 ten (10) Business Day period, an “Assignment Period”) for the resale of Registrable Securities, or the Investors are Investor is otherwise unable to effect the resale of any Registrable Securities hereunder as a result of a breach by the Company of its obligations hereunder, in each case for such period of time (excluding for the duration of any Black Out Period applicable to such Registrable Securities, any Holdback Period, any Assignment Period or the Lock-up Period) as to any Registrable Securities for which any Registration Statement is then required to be effective hereunder (each of the events referred to in clauses (Ai) through (Eiv), a “Registration Default”) the Company shall pay to any the Investor holding any Registrable Securities not eligible for resale as a result of such Registration Default, for the duration of such Registration Default as it applies to such Registrable Securities held an amount equal to one-half percent (0.5%) of the Consulting Services Fixed Amount per thirty (30) days (or portion thereof), payable in cash on the second business day of each calendar month in respect of payments accruing through the last day of the preceding calendar month, with late payments accruing interest at a rate of eighteen percent (18%) per annum (or such lesser maximum amount that is permitted to be paid by applicable law), compounding on each payment date (the payments described in this Section 5, the “Liquidated Damages”); provided, however, that the aggregate amount of Liquidated Damages payable by the Company to the Investor, for all Registration Defaults, shall not exceed ten percent (10%) of the Consulting Services Fixed Amount (i.e., $108,750). Each of the Company and the Investor agree that the Liquidated Damages provided for in this Section 5 constitute a reasonable estimate of the monetary damages that may be incurred by the Investor by reason of a Registration Default and that such Investor:Liquidated Damages are the only monetary damages available to the Investor in the event of a Registration Default. Notwithstanding anything to the contrary set forth in this Section 5, no event shall be considered a Registration Default hereunder if such event or the primary cause thereof (i) was consented to in writing by the Investor or (ii) results (and shall not be considered a Registration Default for as long as it continues to result) solely from any breach or delay in performance by the Investor of any of its obligations set forth in this Stock Plan Agreement.

Delay Payments. If a Key Milestone has not been Achieved by its relevant Milestone Date, the provisions of Paragraph 1 of Part C of Schedule 7.1 (iCharges and Invoicing) shall apply in relation to the payment of Delay Payments. Delay Payments shall be the Buyer's exclusive financial remedy for the Supplier’s failure to Achieve a Key Milestone by its Milestone Date except where: the Buyer is entitled to or does terminate this Contract pursuant to Clause 33.1(b) (Termination by the Buyer); or the Delay exceeds the Delay Deduction Period. REMEDIAL ADVISER If: any of the Intervention Trigger Events occur; or the Buyer reasonably believes that any of the Intervention Trigger Events are likely to occur, (each an “Intervention Cause”), the Buyer may give notice to the Supplier (an “Intervention Notice”) giving reasonable details of the Intervention Cause and requiring: a meeting between the Buyer Representative and the Supplier Representative to discuss the Intervention Cause; and/or the appointment as soon as practicable by the Supplier of a Remedial Adviser, as further described in this Clause 29. For the avoidance of doubt, if the Intervention Cause is also a Supplier Termination Event, the Buyer has no obligation to exercise its rights under this Clause 29.1 prior to or instead of exercising its right to terminate this Contract. If the Buyer gives notice that it requires the appointment of a Remedial Adviser: the Remedial Adviser shall be: a person selected by the Supplier and approved by the Buyer; or if none of the persons selected by the Supplier have been approved by the Buyer (or no person has been selected by the Supplier) within 10 Working Days following the date on which the Intervention Notice is given, a person identified by the Buyer; the terms of engagement and start date agreed with the Remedial Adviser must be approved by the Buyer; and any right of the Buyer to terminate this Contract pursuant to Clause 33.1(b) (Termination by the Buyer) for the occurrence of that Intervention Cause shall be suspended for 60 Working Days from (and including) the date of the Intervention Notice (or such other period as may be agreed between the Parties)(the “Intervention Period”). The Company Remedial Adviser’s overall objective shall be to mitigate the effects of, and each Investor each (to the extent capable of being remedied) to remedy, the Intervention Cause and to avoid the occurrence of similar circumstances in the future. In furtherance of this objective (but without diminishing the Supplier’s responsibilities under this Contract), the Parties agree that the Investor will suffer damagesRemedial Adviser may undertake any one or more of the following actions: observe the conduct of and work alongside the Supplier Personnel to the extent that the Remedial Adviser considers reasonable and proportionate having regard to the Intervention Cause; gather any information the Remedial Adviser considers relevant in the furtherance of its objective; write reports and provide information to the Buyer in connection with the steps being taken by the Supplier to remedy the Intervention Cause; make recommendations to the Buyer and/or the Supplier as to how the Intervention Cause might be mitigated or avoided in the future; and/or take any other steps that the Buyer and/or the Remedial Adviser reasonably considers necessary or expedient in order to mitigate or rectify the Intervention Cause. The Supplier shall: work alongside, provide information to, co-operate in good faith with and adopt any reasonable methodology in providing the Services recommended by the Remedial Adviser; ensure that the Remedial Adviser has all the access it may require in order to carry out its objective, including access to the Assets; submit to such monitoring as the Buyer and/or the Remedial Adviser considers reasonable and proportionate in respect of the Intervention Cause; implement any reasonable recommendations made by the Remedial Adviser that have been approved by the Buyer within the timescales given by the Remedial Adviser; and not terminate the appointment of the Remedial Adviser prior to the end of the Intervention Period without the prior consent of the Buyer (such consent not to be unreasonably withheld). The Supplier shall be responsible for: the costs of appointing, and it would not be feasible the fees charged by, the Remedial Adviser; and its own costs in connection with any action required by the Buyer and/or the Remedial Adviser pursuant to ascertain this Clause 29. If: the extent of such damages with precision, if the Company Supplier: fails to fulfill perform any of the steps required by the Buyer in an Intervention Notice; and/or is in Default of any of its obligations under Article III hereof. Subject in all cases Clause 29.4; and/or the relevant Intervention Trigger Event is not rectified by the end of the Intervention Period, (each a “Remedial Adviser Failure”), the Buyer shall be entitled to Section 3.3 (including any applicable Blackout Period imposed in accordance therewith) and Section 4.6 (including any Holdback Period imposed in accordance therewith, whether such period is terminate this Contract pursuant to the agreement set forth in Section 4.6 or a separate agreement with the underwriters of any Company Offering or Underwritten Offering), if Clause 33.1(b) (A) a Registration Statement is not filed on or prior to any Filing Date applicable thereto, (B) a Registration Statement is not declared effective Termination by the SEC or any order of a governmental authority preventing or suspending the use of any prospectus is not lifted prior to any Effective Date applicable thereto, (C) the Company fails to file with the SEC a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act, within five Business Days after the date that the Company is notified in writing by the SEC that a Registration Statement will not be “reviewed,” or is not subject to further review, (D) after the Effective Date, the Shares are not listed on the NYSE, (E) after the Effective Date, a Registration Statement required to be effective hereunder ceases for any reason to remain effective (without being succeeded immediately by a replacement Registration Statement filed and declared effective) or usable (excluding during the Lock-Up Period, and excluding as a result of a post-effective amendment thereto that is required by applicable law in order to cause a Permitted Assignee hereunder to be named as a selling securityholder therein, provided that such post-effective amendment is filed by the Company within 10 Business Days after the Company receiving notice from any Investor that such post-effective amendment is required (any such 10 Business Day period, an “Assignment Period”) for the resale of Registrable Securities, or the Investors are otherwise unable to effect the resale of any Registrable Securities hereunder as a result of a breach by the Company of its obligations hereunder, in each case for such period of time (excluding the duration of any Black Out Period applicable to such Registrable Securities, any Holdback Period, any Assignment Period or the Lock-up Period) as to any Registrable Securities for which any Registration Statement is then required to be effective hereunder (each of the events referred to in clauses (A) through (EBuyer), a “Registration Default”) the Company shall pay to any Investor holding any Registrable Securities not eligible for resale as a result of such Registration Default, for the duration of such Registration Default as it applies to such Registrable Securities held by such Investor:.

Delay Payments. (i) The Company and each Investor each agree that the any such Investor will suffer damages, and it would not be feasible to ascertain the extent of such damages with precision, if the Company fails to fulfill its obligations under Article III hereofhereunder. Subject in all cases to Section 3.3 5 (including any applicable Blackout Period imposed in accordance therewith) and Section 4.6 (including any or Holdback Period imposed in accordance therewith, whether such period is pursuant to the agreement set forth in Section 4.6 5 or a separate agreement with the underwriters of any Company Offering company offering or Underwritten Offering), if (Ai) a Registration Statement is not filed on or prior to any Filing Date applicable theretorequired date hereunder, (Bii) a Registration Statement is not declared effective by the SEC or any order of a governmental authority preventing or suspending the use of any prospectus is not lifted prior to any Effective Date or Effectiveness Date applicable thereto, (Ciii) the Company fails to file with the SEC a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act, within five (5) Business Days after the date that (A) the Company is notified in writing by the SEC that a Registration Statement will not be “reviewed,” or is not subject to further reviewreview and (B) Legal Counsel has given its prior approval to request acceleration of effectiveness pursuant to Section 3(c), or (D) after the Effective Date, the Shares are not listed on the NYSE, (Eiv) after the Effective Date, a Registration Statement required to be effective hereunder ceases for any reason to remain effective (without being succeeded immediately by a replacement Registration Statement filed and declared effective) or usable (excluding during the Lock-Up Period, and excluding as a result of a post-effective amendment thereto that is required by applicable law in order to cause a Permitted Assignee permitted assignee hereunder to be named as a selling securityholder therein, provided that such post-effective amendment is filed by the Company within 10 ten (10) Business Days after the Company receiving notice from any Investor that such post-effective amendment is required (any such 10 ten (10) Business Day period, an “Assignment Period”) for the resale of Registrable Securities, or the Investors are otherwise unable to effect the resale of any Registrable Securities hereunder as a result of a breach by the Company of its obligations hereunder, in each case for such period of time (excluding the duration of any Black Out Period applicable to such Registrable Securities, any Holdback Period, or any Assignment Period or the Lock-up Period) as to any Registrable Securities for which any Registration Statement is then required to be effective hereunder (each of the events referred to in clauses (Ai) through (Eiv), a “Registration Default”) the Company shall pay to any Investor holding any Registrable Securities not eligible for resale as a result of such Registration Default, for the duration of such Registration Default as it applies to such Registrable Securities held by such Investor:Investor an amount equal to one percent (1%) of the Registrable Securities Purchase Price of such Registrable Securities per thirty (30) days (or portion thereof), payable in cash on the second business day of each calendar month in respect of payments accruing through the last day of the preceding calendar month, with late payments accruing interest at a rate of eighteen percent (18%) per annum (or such lesser maximum amount that is permitted to be paid by applicable law), compounding on each payment date (the payments described in this Section 5(c), the “Liquidated Damages”); provided, however, that the aggregate amount of Liquidated Damages payable by the Company to the Investors, for all Registration Defaults, shall not exceed $2,400,000. Each of the Company and each Investor agree that the Liquidated Damages provided for in this Section 5 constitute a reasonable estimate of the monetary damages that may be incurred by the Investor by reason of a Registration Default and that such Liquidated Damages are the only monetary damages available to the Investors in the event of a Registration Default. Notwithstanding anything to the contrary set forth in this Section 5, no event shall be considered a Registration Default hereunder if such event or the primary cause thereof (i) was consented to in writing by the Investor Representative or (ii) results (and shall not be considered a Registration Default for as long as it continues to result) solely from (A) any breach or delay in performance by any Investor of any of its obligations set forth in this Agreement or (B) any delay solely caused or requested by any underwriter or underwriters in connection with an Underwritten Offering.