Common use of Calculation of Net Cash Clause in Contracts

Calculation of Net Cash. (a) For the purposes of this Agreement, the “Determination Date” shall be the date that is ten (10) calendar days prior to the earlier to occur of the date originally scheduled for the BioSante Stockholder Meeting and the date originally scheduled for the Company Stockholder Meeting, as agreed upon by BioSante and the Company at least fifteen (15) calendar days prior to the earlier to occur of the date originally scheduled for the BioSante Stockholder Meeting and the date originally scheduled for the Company Stockholder Meeting. Within one (1) calendar day following the Determination Date, the Company shall deliver to BioSante a schedule (a “Net Cash Schedule”) setting forth, in reasonable detail, the Company’s calculation of Net Cash (as determined in accordance with the definition of Net Cash set forth in Article I) (the “Net Cash Calculation”) as of such applicable Determination Date prepared by the Company’s Chief Financial Officer. The Company shall make the work papers and back-up materials used in preparing the applicable Net Cash Schedule available to BioSante and, if requested by BioSante, its accountants and counsel at reasonable times and upon reasonable notice. (b) Within two (2) calendar days after the Company delivers the Net Cash Schedule to BioSante (the “Response Date”), BioSante shall have the right to dispute any part of such Net Cash Schedule by delivering a written notice to that effect to the Company (a “Dispute Notice”). Any Dispute Notice shall identify in reasonable detail the nature of any proposed revisions to the Net Cash Calculation and shall be accompanied by reasonably detailed materials supporting the basis for such proposed revisions. (c) If on or prior to the Response Date, (i) BioSante notifies the Company in writing that it has no objections to the Net Cash Calculation set forth in the Net Cash Schedule or (ii) BioSante fails to deliver a Dispute Notice as provided in Section 2.11(b), then the Net Cash Calculation as set forth in the Net Cash Schedule shall be deemed to have been finally determined for purposes of this Agreement and to represent the Net Cash at the Determination Date for purposes of this Agreement. (d) If BioSante delivers a Dispute Notice on or prior to the Response Date as provided in Section 2.11(b), then representatives of the Company and BioSante shall promptly meet and attempt in good faith to promptly resolve the disputed item(s) and negotiate an agreed-upon determination of Net Cash within two (2) calendar days after the Response Date, which agreed upon Net Cash amount shall be deemed to have been finally determined for purposes of this Agreement and to represent the Net Cash at the Determination Date for purposes of this Agreement. (e) Once the Net Cash at the Determination Date has been finally determined, which shall be no later than five (5) calendar days after the Determination Date, the Company shall issue a press release publicly announcing (i) the Company’s Net Cash at the Determination Date, (ii) whether the minimum Net Cash condition set forth in Section 8.02(e) has been satisfied, and (iii) any adjustment to the Exchange Ratio based on the Company’s Net Cash at the Determination Date.

Calculation of Net Cash. (a) For the purposes of this Agreement, the “Determination Date” shall be the date that is ten (10) calendar days prior to the earlier to occur of anticipated date for Closing (the date originally scheduled for the BioSante Stockholder Meeting and the date originally scheduled for the Company Stockholder Meeting“Anticipated Closing Date”), as agreed upon by BioSante and the Company at least fifteen (15) calendar days and Parent. On or prior to the earlier to occur Determination Date, the Company shall provide Parent with a list of all estimated liabilities of the date originally scheduled for Company as of the BioSante Stockholder Meeting and Determination Date that will factor into the date originally scheduled for determination of the Company Stockholder MeetingNet Cash. Within one (1) five calendar day days following the Determination Date, the Company shall deliver to BioSante Parent a schedule (a the “Net Cash Schedule”) setting forth, in reasonable detail, the Company’s good faith, estimated calculation of the Net Cash (using a good faith estimate of the Company’s accounts payable and accrued expenses, in each case as of the Anticipated Closing Date and determined in accordance a manner consistent with the definition of Net Cash illustrative calculation set forth in Article ISection 1.7 of the Company Disclosure Schedules) (the “Net Cash Calculation”) as of such applicable Determination the Anticipated Closing Date prepared and certified by the Company’s Chief Financial Officer (or if there is no Chief Financial Officer, the principal accounting officer for the Company). The Upon reasonable request by Parent, the Company shall make the all work papers and back-up materials used or useful in preparing the applicable Net Cash Schedule available to BioSante andParent and its accountants, if requested by BioSante, its accountants counsel and counsel at reasonable times and upon reasonable noticeother advisors. (b) Within two (2) five calendar days after the Company delivers the Net Cash Schedule to BioSante (the “Response Date”), BioSante shall subject to the terms and definitions set forth in this Agreement, Parent will have the right to dispute any part of such Net Cash Schedule by delivering a written notice to that effect to the Company (a “Dispute Notice”). Any Dispute Notice shall identify in reasonable detail the nature of any proposed revisions to the Net Cash Calculation and shall be accompanied by reasonably detailed materials supporting the basis for such proposed revisions. (c) Calculation. If on or prior to the Response Date, (i) BioSante Parent notifies the Company in writing that it has no objections to the Net Cash Calculation set forth in the Net Cash Schedule or (ii) BioSante Parent fails to deliver a Dispute Notice as provided in this Section 2.11(b1.7(b), then the Net Cash Calculation as set forth in the Net Cash Schedule shall be deemed to have been finally determined for purposes of this Agreement and to represent the Net Cash at the Determination Anticipated Closing Date for purposes of this Agreement. (dc) If BioSante Parent delivers a Dispute Notice on or prior to the Response Date as provided in Section 2.11(b)Date, then representatives Representatives of the Company and BioSante Parent shall promptly meet and attempt in good faith to promptly resolve the disputed item(s) items and negotiate an agreed-upon determination of Net Cash within two (2) calendar days after the Response DateCash, which agreed agreed-upon Net Cash amount shall be deemed to have been finally determined for purposes of this Agreement and to represent the Net Cash at the Determination Anticipated Closing Date for purposes of this Agreement. (ed) Once If Representatives of the Company and Parent are unable to negotiate an agreed-upon determination of Net Cash at the Anticipated Closing Date pursuant to Section 1.7(c) within three calendar days after delivery of the Dispute Notice (or such other period as the Company and Parent may mutually agree upon), then the Company and Parent shall jointly select an independent auditor of recognized standing in the United States (the “Accounting Firm”) to resolve any remaining disagreements as to the Net Cash Calculation. The Company shall promptly deliver to the Accounting Firm the work papers and back-up materials used in preparing the Net Cash Schedule, and the Company and Parent shall use commercially reasonable efforts to cause the Accounting Firm to make its determination within ten calendar days of accepting its selection. Parent and the Company shall be afforded the opportunity to present to the Accounting Firm any materials related to the unresolved disputes and to discuss the issues with the Accounting Firm; provided, however, that no such presentation or discussion shall occur without the presence of a Representative of each of Parent and the Company. The determination of the Accounting Firm shall be limited to the disagreements submitted to the Accounting Firm. The determination of the amount of Net Cash made by the Accounting Firm shall be deemed to have been finally determined for purposes of this Agreement and to represent the Net Cash at the Determination Anticipated Closing Date has been finally determinedfor purposes of this Agreement, which and the parties hereto shall delay the Closing until the resolution of the matters described in this Section 1.7(d). The fees and expenses of the Accounting Firm shall be no later than five allocated between the Company and Parent in the same proportion that the disputed amount of the Net Cash that was unsuccessfully disputed by such party (5as finally determined by the Accounting Firm) calendar days after bears to the Determination Date, total disputed amount of the Net Cash amount (and for the avoidance of doubt the fees and expenses to be paid by the Company shall issue a press release publicly announcing reduce the Net Cash). (ie) If Section 1.7(d) applies as to the Company’s determination of the Net Cash at the Determination Anticipated Closing Date described in Section 1.7(a), upon resolution of the matter in accordance with Section 1.7(d), the parties shall not be required to determine Net Cash again even though the Closing Date may occur later than the Anticipated Closing Date, (ii) whether except that, if the minimum Closing Date is expected to occur more than ten days after the Anticipated Closing Date, Parent may request a redetermination of Net Cash condition set forth in Section 8.02(e) has been satisfied, and (iii) any adjustment if Parent reasonably believes a material change to the Exchange Ratio based on the Company’s balance of Net Cash at has occurred which would result in Net Cash being below the Determination DateNet Cash Threshold; provided that Parent may request such redetermination only one time.