Common use of Subsequent Payments Clause in Contracts

Subsequent Payments. Buyer shall deliver to Seller the following payments of immediately available funds in cash or by wire transfer, at Buyer’s sole discretion (collectively, the “Subsequent Payments”): (i) Five Hundred Thousand Dollars ($500,000) on or before the date that is sixty (60) days following the Closing Date; provided, however, that for the first three (3) months following such due date, for each month (but not counting any portion thereof) that such amount is not paid, Buyer shall pay Seller a monthly late fee of Five Thousand Dollars ($5,000) and shall not be in default under the Note with respect to such late payment. (ii) Two Hundred Thousand Dollars ($200,000.00) on August 1, 2009; (iii) Two Hundred Thousand Dollars ($200,000.00) on August 1, 2010; and (iv) One Hundred Fifty Thousand Dollars ($150,000.00) on August 1, 2011. Buyer’s obligation to deliver the Subsequent Payments to Seller shall be evidenced by Buyer’s execution of a Promissory Note on the Closing Date in substantially the same form as the form note attached hereto as Exhibit E (the “Note”). Buyer will be responsible for paying all documentary stamp taxes or other governmental fees, taxes or other costs associated with the issuance of the Note; provided, however, that Buyer shall not be responsible for and shall have no liability with respect to any income taxes imposed upon or due from Seller in connection with the Note. Buyer grants to Seller (and hereby acknowledges and agrees that Seller will have) a security interest in the Shares being transferred to Buyer under this Agreement. Seller’s security interest will attach upon Seller’s delivery, at the Closing, to Buyer of certificates representing the Shares, duly endorsed (or accompanied by duly executed stock powers) and will transfer to and be equally applicable to any entity to which Buyer might assign or transfer any or all of the assets of the Company subsequent to the Closing. Such security interest shall be junior and subordinate to any security interest of Buyer’s lenders with respect to the assets of Buyer and Seller agrees and covenants to execute any and all subordination agreements or other documents with respect thereto.

Subsequent Payments. (a) Upon the NDA Subsequent Payment Date, if any, Buyer shall deliver or cause to Seller be delivered $65,000,000 (the following payments of immediately available funds in cash or “NDA Subsequent Payment Amount”) to the Sellers by wire transfertransfer of readily available funds, at Buyereach such Seller’s sole discretion portion of the NDA Subsequent Payment Amount set forth on Exhibit 2.3(c). (collectivelyb) Upon the EMA Subsequent Payment Date, if any, Buyer shall deliver or cause to be delivered €15,000,000 (the “EMA Subsequent Payment Amount”) to the Sellers by wire transfer of readily available funds, each such Seller’s portion of the EMA Subsequent Payment Amount set forth on Exhibit 2.3(c). (c) Upon the MA Subsequent Payment Date, if any, Buyer shall deliver or cause to be delivered €45,000,000 (the “MA Subsequent Payment Amount”) to the Sellers by wire transfer of readily available funds, each such Seller’s portion of the MA Subsequent Payment Amount set forth on Exhibit 2.3(c). (d) Upon the Sales Subsequent Payment Date, if any, Buyer shall deliver or cause to be delivered €55,000,000 (the “Sales Subsequent Payment Amount”) to the Sellers by wire transfer of readily available funds, each such Seller’s portion of the Sales Subsequent Payment Amount set forth on Exhibit 2.3(c). (e) The right of each Seller to receive the NDA Subsequent Payment Amount, if any, the “EMA Subsequent Payments”):Payment Amount, if any, the MA Subsequent Payment Amount, if any, and the Sales Subsequent Payment Amount, if any, pursuant to Sections 2.4(a), 2.4(b), 2.4(c) and 2.4(d) may not be Transferred by the Sellers, except by Permitted Transfer. (f) If (i) Five Hundred Thousand Dollars Buyer shall consolidate with or merge into or with any other entity, ($500,000ii) on Buyer shall transfer all or before substantially all of its properties or assets to any person, or (iii) the date that is sixty (60) days following Company Transfers the Closing Dateright to receive payments from Servier under the Collaboration and License Agreement or transfers or assigns the Collaboration and License Agreement, then Buyer, the Group Companies and their Affiliates, as the case may be, shall cause the other party to such transaction to assume all of Buyer’s obligations under this Section 2.4; provided, howeverthat, that for the first three (3) months following such due datein no event shall Buyer be relieved of its obligations under this Agreement, for each month (but not counting any portion thereof) that such amount is not paid, Buyer shall pay Seller a monthly late fee of Five Thousand Dollars ($5,000) and shall not be in default under the Note with respect to such late paymentincluding this Section 2.4. (iig) Two Hundred Thousand Dollars For the avoidance of doubt, any payment directly by Servier of the MA Subsequent Payment Amount, EMA Subsequent Payment Amount and/or Sales Subsequent Payment Amount, if any, to Sellers shall reduce Buyer’s obligation, if any, to make the MA Subsequent Payment Amount, EMA Subsequent Payment Amount and/or Sales Subsequent Payment Amount, as applicable, in the amount of the payment made by Servier. In addition, for the purposes of the EMA Subsequent Payment Amount, the MA Subsequent Payment Amount and the Sales Subsequent Payment Amount, the Buyer shall be deemed to have “received” the milestone payment from Servier related to such amounts for the purposes hereof to the extent that the actual milestone payment sent by Servier to the Buyer of its Affiliates is less than the amount due hereunder ($200,000.00or under the Collaboration and License Agreement) on August 1, 2009;because of a contractual agreement to net or offset payments to Buyer or its Affiliates. (iiih) Two Hundred Thousand Dollars ($200,000.00) on August 1For the avoidance of doubt, 2010; and (iv) One Hundred Fifty Thousand Dollars ($150,000.00) on August 1, 2011. Buyer’s obligation all references to deliver the Subsequent Payments Sellers in this Section 2.4 shall refer to Seller shall be evidenced by Buyer’s execution of a Promissory Note on the Closing Date in substantially the same form as the form note attached hereto as Exhibit E (the “Note”). Buyer will be responsible for paying all documentary stamp taxes or other governmental fees, taxes or other costs associated with the issuance of the Note; provided, however, that Buyer shall not be responsible for Sellers and shall have no liability with respect to any income taxes imposed upon or due from Seller in connection with the Note. Buyer grants to Seller (and hereby acknowledges and agrees that Seller will have) a security interest in the Shares being transferred to Buyer under this Agreement. Seller’s security interest will attach upon Seller’s delivery, at the Closingtheir Permitted Transferees, to Buyer of certificates representing the Shares, duly endorsed (or accompanied by duly executed stock powers) and will transfer to and be equally applicable to any entity to which Buyer might assign or transfer any or all of the assets of the Company subsequent to the Closing. Such security interest shall be junior and subordinate to any security interest of Buyer’s lenders with respect to the assets of Buyer and Seller agrees and covenants to execute any and all subordination agreements or other documents with respect theretoextent a Permitted Transfer occurs.

Subsequent Payments. Buyer (a) Each Cash Investor shall deliver additional payments of one-third (1/3) of such Cash Investor's Purchase Price (each, a "SUBSEQUENT CASH CONTRIBUTION") to Seller the following payments of in immediately available funds in cash or funds, by wire transfertransfer (or other means acceptable to Seller) to the account described on Schedule B (or such other account as the Seller may from time to time designate) on each of December 31, at Buyer’s sole discretion 1999 and December 31, 2000 (collectivelyeach, a "SUBSEQUENT PAYMENT DATE"). (b) Seller has the “Subsequent Payments”): right to (i) Five Hundred Thousand Dollars ($500,000) on or accelerate payment of each of the Subsequent Cash Contributions by up to 90 days prior to the relevant Subsequent Payment Date by providing the relevant Buyers with notice at least 30 days before the proposed payment date that is sixty and (60ii) days following assign the right to receive any unpaid Subsequent Cash Contribution to a lender as security for an interim advance to the Company by such lender. (c) Each Cash Investor acknowledges and agrees that, if the Closing Date; providedoccurs, howeverits obligation to make payments to Seller of the relevant Subsequent Cash Contributions constitutes an absolute, that for the first three (3) months following such due dateirrevocable and unconditional obligation, for each month (but not counting any portion thereof) that such amount is not paid, Buyer shall pay Seller a monthly late fee of Five Thousand Dollars ($5,000) and shall not be subject to claim, set-off, or other rights which such Buyer may have at any time against the Seller. If a Buyer fails to pay a Subsequent Cash Contribution to the Seller more than two business days after the Subsequent Payment Date: (i) such defaulting party will be subject to liquidated damages in default the amount of 25% of its Securities (which liquidated damages, in the case of the DLJ Entities, shall be paid to DLJMB (in lieu of the Company), if DLJMB timely paid (or caused to be paid timely) the Subsequent Cash Contribution), (ii) all remaining Subsequent Cash Contributions of such defaulting party shall become immediately due and payable in full, (iii) the outstanding amount shall accrue interest at a rate per annum equal to 200 basis points over the highest rate of interest charged from time to time by the Seller's senior lenders, (iv) the rights of such defaulting party under the Note Shareholders' Agreement but none of its obligations will terminate and (v) the Series A Preferred Stock of such defaulting party will convert to Class A Common Stock in accordance with respect to such late paymentthe Restated Certificate. (iid) Two Hundred Thousand Dollars Without limiting Section 2.03(c), in the event that any DLJ Entity fails to make any Subsequent Cash Contribution on the applicable Subsequent Payment Date, DLJMB shall make ($200,000.00or shall cause to be made) on August 1such Subsequent Cash Contribution within two business days of such Subsequent Payment Date. DLJMB acknowledges and agrees that, 2009; (iii) Two Hundred Thousand Dollars ($200,000.00) on August 1if the Closing occurs, 2010; and (iv) One Hundred Fifty Thousand Dollars ($150,000.00) on August 1, 2011. Buyer’s its obligation to deliver the Subsequent Payments make payments to Seller shall be evidenced by Buyer’s execution of a Promissory Note on Subsequent Cash Contributions of other DLJ Entities pursuant to the Closing Date in substantially the same form as the form note attached hereto as Exhibit E (the “Note”). Buyer will be responsible for paying all documentary stamp taxes or other governmental feespreceding sentence constitutes an absolute, taxes or other costs associated with the issuance of the Note; providedirrevocable and unconditional obligation, however, that Buyer and shall not be responsible for and shall have no liability with respect subject to any income taxes imposed upon or due from Seller in connection with the Note. Buyer grants to Seller (and hereby acknowledges and agrees that Seller will have) a security interest in the Shares being transferred to Buyer under this Agreement. Seller’s security interest will attach upon Seller’s deliveryclaim, at the Closingset-off, to Buyer of certificates representing the Shares, duly endorsed (or accompanied by duly executed stock powers) and will transfer to and be equally applicable to any entity to which Buyer might assign or transfer any or all of the assets of the Company subsequent to the Closing. Such security interest shall be junior and subordinate to any security interest of Buyer’s lenders with respect to the assets of Buyer and Seller agrees and covenants to execute any and all subordination agreements or other documents with respect thereto.rights which DLJMB may have at any time against the Seller nor shall the Seller be required to exhaust any remedies against the defaulting party before proceeding against DLJMB to enforce this Section 2.03

Subsequent Payments. Buyer shall deliver to Seller the following (a) The payments of immediately available funds set forth in cash Sections 3.1(b), (c) and (d) (individually, a "Subsequent Payment" or by wire transfer, at Buyer’s sole discretion (collectively, the “"Subsequent Payments”): (i") Five Hundred Thousand Dollars ($500,000) on or before the date that is sixty (60) days following the Closing Date; provided, however, that for the first three (3) months following such due date, for each month (but not counting any portion thereof) that such amount is not paid, Buyer shall pay Seller a monthly late fee of Five Thousand Dollars ($5,000) and shall not be in default under the Note payable with respect to any Subsequent Payment, if the Net Sales of Product are less than $15,000,000 in the calendar year in which such late payment. (ii) Two Hundred Thousand Dollars ($200,000.00) on August 1, 2009; (iii) Two Hundred Thousand Dollars ($200,000.00) on August 1, 2010; and (iv) One Hundred Fifty Thousand Dollars ($150,000.00) on August 1, 2011Subsequent Payment is payable. Buyer’s obligation to deliver the The Subsequent Payments to Seller shall be evidenced by Buyer’s execution of a Promissory Note on the Closing Date in substantially the same form as the form promissory note attached hereto as Exhibit E C (the “"Promissory Note”"), which shall be delivered to Seller at Closing. Buyer will In the event ILEX does not make any Subsequent Payment for the reason set forth in the first sentence of this Section 3.2(a), then ILEX's obligation to make the Subsequent Payments shall resume once the Net Sales of Product are equal to or greater than $15,000,000 in any given calendar year and the date on which each unpaid Subsequent Payment shall be responsible due shall be extended by the number of years that ILEX was not obligated to make a Subsequent Payment. (b) Notwithstanding the provisions of Sections 3.1(b), (c) and (d) requiring the Subsequent Payments to be paid in cash, with regard to any Subsequent Payments due prior to the completion of a Qualified Financing, ILEX may, at its option, make up to (x) fifty percent (50%) of the Subsequent Payment required under Section 3.1(b) and (y) sixty-three percent (63%) (inclusive of the amounts set forth in Section 3.2(c)) of any such Subsequent Payment required under Sections 3.1(c) and (d) in shares of ILEX Stock in lieu of cash (the "Stock Consideration"); provided that (i) the resale of such ILEX Stock must be registered under an effective registration statement on Form S-3 under the Securities Act as of the date of such issuance; (ii) as of the time of such issuance, the ILEX Stock shall continue to be listed on Nasdaq; (iii) on the date of issuance, trading in ILEX Stock shall not have been suspended, other than a temporary suspension of trading to provide for paying an orderly market; (iv) ILEX shall be current in its reporting obligations under the Exchange Act; (v) such issuance would not cause the MLNM Parties and their Affiliates to hold in excess of 19.9% of the ILEX Stock then outstanding; and (vi) no action, suit or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent the issuance of such ILEX Stock or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling or charge shall be in effect); (vii) ILEX shall have delivered to Seller a certificate to the effect that each of the conditions specified in this Section 3.2(b) are satisfied in all documentary stamp taxes respects; and (viii) provided that Seller has complied with its covenants and agreements in Section 7.3, all applicable waiting periods (and any extensions thereof) under the HSR Act shall have expired or otherwise been terminated and the Parties shall have received all other governmental feesauthorizations, taxes or other costs associated consents and approvals of any Governmental Authority required in connection with the issuance of the NoteILEX Stock. The number of shares of ILEX Stock issuable pursuant to this Section 3.2(b) in lieu of a cash portion of a Subsequent Payment shall be equal to the quotient obtained by dividing the cash amount of such portion of a Subsequent Payment by the Market Price of ILEX Stock on the date such Subsequent Payment is to be paid. ILEX shall provide Seller with forty-five (45) days' advance notice of its intent to pay any portion of a Subsequent Payment in shares of ILEX Stock and the amount of such portion to be paid in ILEX stock and shall issue such shares of ILEX Stock in the name of the Trust or a designee named by Seller provided any such designee shall deliver an officer's certificate to ILEX setting forth equivalent representations and warranties as set forth in Section 4.7 hereof. Notwithstanding the above, in the event ILEX merges with or into another entity, sells all or substantially all of its assets or, directly or indirectly, sells or assigns, all or substantially all of its rights to the Product or all or substantially all of its right to receive revenues or profits based on sales of the Product, then ILEX shall lose the ability provided in Sections 3.2(b) or 3.2(c) to make any portion of any Subsequent Payment in equity. (c) Notwithstanding the completion of a Qualified Financing by ILEX, up to 25% of the payments due in Section 3.1(c) can be made by ILEX, at its option, in shares of ILEX Stock in lieu of cash. Notwithstanding the completion of a Qualified Financing by ILEX, up to 25% of the payments due in Section 3.1(d) can be made by ILEX, at its option, in shares of ILEX Stock in lieu of cash; provided, however, that Buyer shall not be responsible for and all the conditions precedent to the issuance of Stock Consideration set forth in Section 3.2(b) shall have no liability with respect been met. The number of shares of ILEX Stock issuable pursuant to any income taxes imposed upon or due from Seller this Section 3.2(c) in connection with the Note. Buyer grants to Seller (and hereby acknowledges and agrees that Seller will have) lieu of a security interest in the Shares being transferred to Buyer under this Agreement. Seller’s security interest will attach upon Seller’s delivery, at the Closing, to Buyer cash portion of certificates representing the Shares, duly endorsed (or accompanied by duly executed stock powers) and will transfer to and a Subsequent Payment shall be equally applicable to any entity to which Buyer might assign or transfer any or all of the assets of the Company subsequent equal to the Closing. Such security interest shall quotient obtained by dividing the cash amount of such portion of a Subsequent Payment by the Market Price of ILEX Stock on the date such Subsequent Payment is to be junior and subordinate to any security interest of Buyer’s lenders with respect to the assets of Buyer and Seller agrees and covenants to execute any and all subordination agreements or other documents with respect theretopaid.