Common use of Subsequent Payments Clause in Contracts

Subsequent Payments. Subsequent to the Initial Payment, RRD shall invoice Eiger, and Eiger shall pay to RRD: A. As scheduled, per Section 8 of Exhibit F. In the event of a modification of the Development Budget, upon approval of the Development Advisory Committee, RRD and Eiger will negotiate an amendment to the payment schedule in good faith consistent with the revised Development Budget over the remainder of the term; and B. On a [***] basis, RRD shall invoice Eiger for the RRD Expert Consultant fees and actual amount of pass-through expenses (including RRD Subcontractors) incurred during the most recently completed month, [***]. RRD shall promptly (i) pay all invoices for RRD Expert Consultant fees and pass-through expenses (including RRD Subcontractors) for Services contemplated under this Project Agreement No. 1 in accordance with the payment terms of the applicable agreement between such RRD Expert Consultant or RRD Subcontractor and RRD and (ii) provide Eiger with reasonable evidence of such payment when made by RRD. In the event the aggregate net amount of such costs paid by RRD at any one time is equal to or greater than the amount of the Deposit, Eiger shall either be responsible for paying such further payments directly to the respective vendors or reasonably increasing the amount of the Deposit to RRD to cover such net payments going forward. C. RRD reserves [***]. D. Upon termination of this Project Agreement, RRD will reconcile unpaid service fees earned (including wind-down fees, if any), unreimbursed RRD Expert Consultant fees and pass-through expenses (including RRD Subcontractors), and all other unreimbursed pass-through expenses against the balance of funds previously advanced by Eiger. Any excess of unapplied Eiger deposits over unpaid fees, costs and expenses will be offset against (i.e., deducted from) the final billing due to Eiger. If such excess is not able to be completely offset in this manner, the difference will be promptly refunded by RRD to Eiger, or alternatively, Eiger can in its sole discretion offset it against any payments still due to RRD under previous invoices.

Subsequent Payments. Subsequent (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 in immediately available funds, by wire transfer (or other means acceptable to Seller) to the Initial Paymentaccount described on Schedule B (or such other account as the Seller may from time to time designate) on each of December 31, RRD shall invoice Eiger1999 and December 31, and Eiger shall pay 2000 (each, a "SUBSEQUENT PAYMENT DATE"). (b) Seller has the right to RRD: A. As scheduled, per Section 8 of Exhibit F. In the event of a modification of the Development Budget, upon approval of the Development Advisory Committee, RRD and Eiger will negotiate an amendment to the payment schedule in good faith consistent with the revised Development Budget over the remainder of the term; and B. On a [***] basis, RRD shall invoice Eiger for the RRD Expert Consultant fees and actual amount of pass-through expenses (including RRD Subcontractors) incurred during the most recently completed month, [***]. RRD shall promptly (i) 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 and (ii) 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 occurs, its obligation to make payments to Seller of the relevant Subsequent Cash Contributions constitutes an absolute, irrevocable and unconditional obligation, 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 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 invoices for RRD Expert Consultant fees remaining Subsequent Cash Contributions of such defaulting party shall become immediately due and pass-through expenses payable in full, (including RRD Subcontractorsiii) for Services contemplated 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 this Project the Shareholders' Agreement No. 1 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 the payment terms of Restated Certificate. (d) Without limiting Section 2.03(c), in the event that any DLJ Entity fails to make any Subsequent Cash Contribution on the applicable agreement between Subsequent Payment Date, DLJMB shall make (or shall cause to be made) such RRD Expert Consultant or RRD Subcontractor and RRD and (ii) provide Eiger with reasonable evidence Subsequent Cash Contribution within two business days of such payment when made by RRDSubsequent Payment Date. In DLJMB acknowledges and agrees that, if the event Closing occurs, its obligation to make payments to Seller of Subsequent Cash Contributions of other DLJ Entities pursuant to the aggregate net amount of such costs paid by RRD preceding sentence constitutes an absolute, irrevocable and unconditional obligation, and shall not be subject to claim, set-off, or other rights which DLJMB may have at any one time is equal to or greater than the amount of the Deposit, Eiger shall either be responsible for paying such further payments directly to the respective vendors or reasonably increasing the amount of the Deposit to RRD to cover such net payments going forward. C. RRD reserves [***]. D. Upon termination of this Project Agreement, RRD will reconcile unpaid service fees earned (including wind-down fees, if any), unreimbursed RRD Expert Consultant fees and pass-through expenses (including RRD Subcontractors), and all other unreimbursed pass-through expenses against the balance of funds previously advanced by Eiger. Any excess of unapplied Eiger deposits over unpaid fees, costs and expenses will Seller nor shall the Seller be offset required to exhaust any remedies against (i.e., deducted from) the final billing due defaulting party before proceeding against DLJMB to Eiger. If such excess is not able to be completely offset in enforce this manner, the difference will be promptly refunded by RRD to Eiger, or alternatively, Eiger can in its sole discretion offset it against any payments still due to RRD under previous invoices.Section 2.03

Subsequent Payments. (a) Upon the NDA Subsequent Payment Date, if any, Buyer shall deliver or cause to be delivered $65,000,000 (the “NDA Subsequent Payment Amount”) to the Initial PaymentSellers by wire transfer of readily available funds, RRD each such Seller’s portion of the NDA Subsequent Payment Amount set forth on Exhibit 2.3(c). (b) Upon the EMA Subsequent Payment Date, if any, Buyer shall invoice Eigerdeliver 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 Payment Amount, if any, the MA Subsequent Payment Amount, if any, and Eiger shall pay the Sales Subsequent Payment Amount, if any, pursuant to RRD: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. A. As scheduled, per Section 8 of Exhibit F. In the event of a modification of the Development Budget, upon approval of the Development Advisory Committee, RRD and Eiger will negotiate an amendment to the payment schedule in good faith consistent with the revised Development Budget over the remainder of the term; and B. On a [***] basis, RRD shall invoice Eiger for the RRD Expert Consultant fees and actual amount of pass-through expenses (including RRD Subcontractorsf) incurred during the most recently completed month, [***]. RRD shall promptly If (i) pay all invoices for RRD Expert Consultant fees and pass-through expenses (including RRD Subcontractors) for Services contemplated under this Project Agreement No. 1 in accordance Buyer shall consolidate with the payment terms of the applicable agreement between such RRD Expert Consultant or RRD Subcontractor and RRD and merge into or with any other entity, (ii) provide Eiger with reasonable evidence Buyer shall transfer all or substantially all of its properties or assets to any person, or (iii) the Company Transfers the right 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, that, in no event shall Buyer be relieved of its obligations under this Agreement, including this Section 2.4. (g) For the avoidance of doubt, any payment when made directly by RRD. In Servier of the event 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 aggregate net amount of such costs paid by RRD at any one time is equal to or greater than MA Subsequent Payment Amount, EMA Subsequent Payment Amount and/or Sales Subsequent Payment Amount, as applicable, in the amount of the Depositpayment made by Servier. In addition, Eiger for the purposes of the EMA Subsequent Payment Amount, the MA Subsequent Payment Amount and the Sales Subsequent Payment Amount, the Buyer shall either be responsible deemed to have “received” the milestone payment from Servier related to such amounts for paying such further payments directly the purposes hereof to the respective vendors or reasonably increasing extent that the actual milestone payment sent by Servier to the Buyer of its Affiliates is less than the amount due hereunder (or under the Collaboration and License Agreement) because of the Deposit a contractual agreement to RRD net or offset payments to cover such net payments going forwardBuyer or its Affiliates. C. RRD reserves [***]. D. Upon termination (h) For the avoidance of this Project Agreementdoubt, RRD will reconcile unpaid service fees earned (including wind-down fees, if any), unreimbursed RRD Expert Consultant fees and pass-through expenses (including RRD Subcontractors), and all other unreimbursed pass-through expenses against the balance of funds previously advanced by Eiger. Any excess of unapplied Eiger deposits over unpaid fees, costs and expenses will be offset against (i.e., deducted from) the final billing due references to Eiger. If such excess is not able to be completely offset Sellers in this mannerSection 2.4 shall refer to Sellers and their Permitted Transferees, to the difference will be promptly refunded by RRD to Eiger, or alternatively, Eiger can in its sole discretion offset it against any payments still due to RRD under previous invoicesextent a Permitted Transfer occurs.

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 to Payments”): (i) Five Hundred Thousand Dollars ($500,000) on or before the Initial Paymentdate that is sixty (60) days following the Closing Date; provided, RRD shall invoice Eigerhowever, and Eiger 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 RRD:such late payment. A. As scheduled(ii) Two Hundred Thousand Dollars ($200,000.00) on August 1, per Section 8 of Exhibit F. In the event of a modification of the Development Budget2009; (iii) Two Hundred Thousand Dollars ($200,000.00) on August 1, upon approval of the Development Advisory Committee, RRD and Eiger will negotiate an amendment to the payment schedule in good faith consistent with the revised Development Budget over the remainder of the term2010; and B. On (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 [***] basis, RRD shall invoice Eiger for Promissory Note on the RRD Expert Consultant fees and actual amount of pass-through expenses Closing Date in substantially the same form as the form note attached hereto as Exhibit E (including RRD Subcontractors) incurred during the most recently completed month, [***]“Note”). RRD shall promptly (i) pay all invoices for RRD Expert Consultant fees and pass-through expenses (including RRD Subcontractors) for Services contemplated under this Project Agreement No. 1 in accordance with the payment terms of the applicable agreement between such RRD Expert Consultant or RRD Subcontractor and RRD and (ii) provide Eiger with reasonable evidence of such payment when made by RRD. In the event the aggregate net amount of such costs paid by RRD at any one time is equal to or greater than the amount of the Deposit, Eiger shall either Buyer will be responsible for paying such further payments directly 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 respective vendors or reasonably increasing Closing. Such security interest shall be junior and subordinate to any security interest of Buyer’s lenders with respect to the amount assets of the Deposit Buyer and Seller agrees and covenants to RRD to cover such net payments going forward. C. RRD reserves [***]. D. Upon termination of this Project Agreement, RRD will reconcile unpaid service fees earned (including wind-down fees, if any), unreimbursed RRD Expert Consultant fees and pass-through expenses (including RRD Subcontractors), execute any and all subordination agreements or other unreimbursed pass-through expenses against the balance of funds previously advanced by Eiger. Any excess of unapplied Eiger deposits over unpaid fees, costs and expenses will be offset against (i.e., deducted from) the final billing due to Eiger. If such excess is not able to be completely offset in this manner, the difference will be promptly refunded by RRD to Eiger, or alternatively, Eiger can in its sole discretion offset it against any payments still due to RRD under previous invoicesdocuments with respect thereto.

Subsequent Payments. (a) The payments set forth in Sections 3.1(b), (c) and (d) (individually, a "Subsequent Payment" or collectively, the "Subsequent Payments") shall not be payable with respect to the Initial any Subsequent Payment, RRD if the Net Sales of Product are less than $15,000,000 in the calendar year in which such Subsequent Payment is payable. The Subsequent Payments shall invoice Eigerbe evidenced by the promissory note attached hereto as Exhibit C (the "Promissory Note"), and Eiger which shall pay be delivered to RRD: A. As scheduled, per Section 8 of Exhibit F. In the event of a modification of the Development Budget, upon approval of the Development Advisory Committee, RRD and Eiger will negotiate an amendment to the payment schedule in good faith consistent with the revised Development Budget over the remainder of the term; and B. On a [***] basis, RRD shall invoice Eiger for the RRD Expert Consultant fees and actual amount of pass-through expenses (including RRD Subcontractors) incurred during the most recently completed month, [***]. RRD shall promptly (i) pay all invoices for RRD Expert Consultant fees and pass-through expenses (including RRD Subcontractors) for Services contemplated under this Project Agreement No. 1 in accordance with the payment terms of the applicable agreement between such RRD Expert Consultant or RRD Subcontractor and RRD and (ii) provide Eiger with reasonable evidence of such payment when made by RRDSeller at Closing. In the event ILEX does not make any Subsequent Payment for the aggregate net amount reason set forth in the first sentence of such costs paid by RRD at any one time is 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 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 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 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 authorizations, consents and approvals of any Governmental Authority required in connection with the issuance of the ILEX 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 Depositname 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, Eiger shall either be responsible for paying such further payments 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 respective vendors Product or reasonably increasing 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, that all the conditions precedent to the issuance of Stock Consideration set forth in Section 3.2(b) shall have been met. The number of shares of ILEX Stock issuable pursuant to this Section 3.2(c) 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 Deposit to RRD to cover Market Price of ILEX Stock on the date such net payments going forward. C. RRD reserves [***]. D. Upon termination of this Project Agreement, RRD will reconcile unpaid service fees earned (including wind-down fees, if any), unreimbursed RRD Expert Consultant fees and pass-through expenses (including RRD Subcontractors), and all other unreimbursed pass-through expenses against the balance of funds previously advanced by Eiger. Any excess of unapplied Eiger deposits over unpaid fees, costs and expenses will be offset against (i.e., deducted from) the final billing due to Eiger. If such excess Subsequent Payment is not able to be completely offset in this manner, the difference will be promptly refunded by RRD to Eiger, or alternatively, Eiger can in its sole discretion offset it against any payments still due to RRD under previous invoicespaid.