The Merger Consideration. As of the Effective Time, as a result of the Merger and without any other action on the part of the stockholders, all of the outstanding shares of common stock, $0.001 par value per share, of PBAC (the "PBAC Common Stock") shall be converted into shares of common stock of the Surviving Corporation (the "PolaRx Common Stock") and all of the shares of PolaRx outstanding immediately prior to the Effective Time shall, at the Effective Time, by virtue of the Merger and without any action on the part of the stockholders, be automatically converted into the shares of CTI Common Stock (as hereinafter defined) and additional consideration upon subsequent closing dates, for aggregate consideration (the "Merger Consideration") by virtue of the Merger and without any action on the part of the stockholders and be converted into the right of such PolaRx Stockholders to receive that portion of the Merger Consideration (as defined below) set forth across from their names in Schedule 1 (the "PolaRx Stockholders"). Fractional shares shall be rounded up or down to the nearest whole number. The Merger Consideration shall be: (a) Two million (2,000,000) unregistered newly issued shares of CTI common stock, no par value per share ("CTI Common Stock"), to be issued and delivered to the PolaRx Stockholders at the Effective Time; (b) One million (1,000,000) unregistered newly issued shares of CTI Common Stock, subject to stock splits, stock dividends, reclassifications and reorganizations, to be issued and delivered to the PolaRx Stockholders on or before the second closing date, which shall be the earlier of, (x) within thirty (30) days following the first New Drug Application approved by the U.S. Food and Drug Administration submitted by CTI or an affiliate or sublicensee of CTI with respect to an Arsenic Product, or (x) the day preceding the fifth anniversary of the Closing Date (the earlier such date shall be referred to herein as the "Second Closing"); (c) Two million (2,000,000) unregistered newly issued shares of CTI Common Stock, subject to stock splits, stock dividends, reclassifications and reorganizations, to be issued and delivered to the PolaRx Stockholders at the Second Closing; (d) $4,000,000 in cash, to be paid and delivered to the PolaRx Stockholders no later than March 31, 2003. (e) (1) a number of unregistered newly issued shares of CTI Common Stock having a Fair Market Value of five million dollars ($5,000,000); (2) $5,000,000 in cash, or (3) a mixture of cash and stock under (1) and (2) above, at the sole election of CTI, to be issued or paid and delivered to the PolaRx Stockholders within thirty (30) days following the end of the first calendar quarter in which aggregate Net Sales of Arsenic Products sold by CTI, affiliates and sublicensees of CTI equal or exceed twenty million dollars ($20,000,000) for the previous four (4) calendar quarters; (f) Until the later of, (x) the last patent to expire contained in the patent rights owned or licensed by PolaRx and included in the PolaRx Assets, or (y) seven (7) years following the first commercial sale of an Arsenic Product by CTI, its sublicensees or affiliates; within thirty (30) days following the end of every calendar year in which Net Sales of Arsenic Products sold by CTI, its sublicensees and affiliates exceed forty million dollars ($40,000,000), CTI shall (1) issue to the PolaRx Stockholders (or to an exchange fund or escrow arrangement for the benefit of the PolaRx Stockholders, which exchange fund or escrow agreement shall be agreed to in writing by the PolaRx Representative), a number of shares of CTI Common Stock having a Fair Market Value equal to two percent (2%) of Net Sales of Arsenic Products sold by CTI, its sublicensees or affiliates during the previous calendar year; (2) make a cash payment to the PolaRx Stockholders (or to an exchange fund or escrow arrangement for the benefit of the PolaRx Stockholders, which exchange fund or escrow agreement shall be agreed to in writing by the PolaRx Representative) equal to two percent (2%) of Net Sales of Arsenic Products sold by CTI, its sublicensees or affiliates during the previous calendar year, or (3) a mixture of cash and stock under (1) and (2) above. If at the time that any payment shall be required pursuant to this Section 1.4, CTI does not have a class of common stock that is then publicly traded on a national securities exchange, than any such payment shall be made in cash in the applicable amount. Any issuances of stock by CTI under Sections 1.4(e) and (f) shall be unlegended unless required by law or issued to an affiliate."
Appears in 1 contract
The Merger Consideration. As of the Effective Time, as a result of the ------------------------ Merger and without any other action on the part of the stockholders, all of the outstanding shares of common stock, $0.001 par value per share, of PBAC (the "PBAC Common Stock") shall be converted into shares of common stock of the ----------------- Surviving Corporation (the "PolaRx Common Stock") and all of the shares of ------------------- PolaRx outstanding immediately prior to the Effective Time shall, at the Effective Time, by virtue of the Merger and without any action on the part of the stockholders, be automatically converted into the shares of CTI Common Stock (as hereinafter defined) and additional consideration upon subsequent closing dates, for aggregate consideration (the "Merger Consideration") by virtue of the -------------------- Merger and without any action on the part of the stockholders and be converted into the right of such PolaRx Stockholders to receive that portion of the Merger Consideration (as defined below) set forth across from their names in Schedule 1 ---------- (the "PolaRx Stockholders"). Fractional shares shall be rounded up or down to ------------------------ the nearest whole number. The Merger Consideration shall be:
(a) Two million (2,000,000) unregistered newly issued shares of CTI common stock, no par value per share ("CTI Common Stock"), to be ---------------- issued and delivered to the PolaRx Stockholders at the Effective Time;
(b) One million (1,000,000) unregistered newly issued shares of CTI Common Stock, subject to stock splits, stock dividends, reclassifications and reorganizations, to be issued and delivered to the PolaRx Stockholders on or before the second closing date, which shall be the earlier of, (x) within thirty (30) days following the first New Drug Application approved by the U.S. Food and Drug Administration submitted by CTI or an affiliate or sublicensee of CTI with respect to an Arsenic Product, or (x) the day preceding the fifth anniversary of the Closing Date (the earlier such date shall be referred to herein as the "Second Closing");; --------------
(c) Two million (2,000,000) unregistered newly issued shares of CTI Common Stock, subject to stock splits, stock dividends, reclassifications and reorganizations, to be issued and delivered to the PolaRx Stockholders at the Second Closing;
(d) A number of unregistered newly issued shares of CTI Common Stock having a Fair Market Value of four million dollars ($4,000,000 in cash4,000,000), to be paid issued and delivered to the PolaRx Stockholders no later than March 31within thirty (30) days following the end of the first calendar quarter in which aggregate Net Sales of Arsenic Products sold by CTI, 2003.affiliates and sublicensees of CTI equal or exceed ten million dollars ($10,000,000) for the previous four (4) calendar quarters;
(e) (1) a An additional number of unregistered newly issued shares of CTI Common Stock having a Fair Market Value of five million dollars ($5,000,000); (2) $5,000,000 in cash, or (3) a mixture of cash and stock under (1) and (2) above, at the sole election of CTI, to be issued or paid and delivered to the PolaRx Stockholders within thirty (30) days following the end of the first calendar quarter in which aggregate Net Sales of Arsenic Products sold by CTI, affiliates and sublicensees of CTI equal or exceed twenty million dollars ($20,000,000) for the previous four (4) calendar quarters;
(f) Until the later of, (x) the last patent to expire contained in the patent rights owned or licensed by PolaRx and included in the PolaRx Assets, or (y) seven (7) years following the first commercial sale of an Arsenic Product by CTI, its sublicensees or affiliates; within thirty (30) days following the end of every calendar year in which Net Sales of Arsenic Products sold by CTI, its sublicensees and affiliates exceed forty million dollars ($40,000,000), CTI shall (1) issue to the PolaRx Stockholders (or to an exchange fund or escrow arrangement for the benefit of the PolaRx Stockholdersof, which exchange fund or escrow agreement shall be and agreed to in writing by a majority of the PolaRx Representative)Stockholders, a number of shares of CTI Common Stock having a Fair Market Value equal to two percent (2%) of Net Sales of Arsenic Products sold by CTI, its sublicensees or affiliates during the previous calendar year; (2) make a cash payment to the PolaRx Stockholders (or to an exchange fund or escrow arrangement for the benefit of the PolaRx Stockholders, which exchange fund or escrow agreement shall be agreed to in writing by the PolaRx Representative) equal to two percent (2%) of Net Sales of Arsenic Products sold by CTI, its sublicensees or affiliates during the previous calendar year, or (3) a mixture of cash and stock under (1) and (2) above. If at the time that any payment shall be required pursuant to this Section 1.4, CTI does not have a class of common stock that is then publicly traded on a national securities exchange, than any such payment shall be made in cash in the applicable amount. Any issuances of stock by CTI under Sections 1.4(e) and (f) shall be unlegended unless required by law or issued to an affiliate."
Appears in 1 contract
The Merger Consideration. As of the Effective Time, as a result of the Merger and without any other action on the part of the stockholders, all of the outstanding shares of common stock, $0.001 par value per share, of PBAC Acquisition Sub (the "PBAC “Acquisition Sub Common Stock"”) shall be converted into shares of common stock of the Surviving Corporation (the "PolaRx “DTI Common Stock"”) and all of the shares of PolaRx DTI outstanding immediately prior to the Effective Time shall, at the Effective Time, by virtue of the Merger and without any action on the part of the stockholders, be automatically converted into the shares of CTI Common Stock First Shares (as hereinafter defined) and additional consideration upon subsequent closing datesand, for aggregate consideration subject to achievement of a Trigger Event (as hereinafter defined), the "Contingent Shares (as hereinafter defined) (collectively, the “Merger Consideration"”) by virtue of the Merger and without any action on the part of the stockholders DTI Stockholders, and be converted into the right of such PolaRx the DTI Stockholders and the Arizona Board of Regents on behalf of the University of Arizona (“UA”) to receive that portion of the Merger Consideration (as defined below) set forth across from their names in Schedule 1 (the "PolaRx Stockholders"). Appendix A. Fractional shares shall be rounded up or down to the nearest whole number. The Merger Consideration shall be:
(a) Two An aggregate of one million one hundred eighty-seven thousand five hundred (2,000,0001,187,500) unregistered newly issued shares (the “First Shares”) of CTI Titan common stock, no par value $.001 per share ("CTI “Titan Common Stock"”), to be issued and delivered to the PolaRx DTI Stockholders at the Effective TimeTime (the “First Closing”) in accordance with Appendix A;
(b) One million $171,250 to be issued and delivered to UA at the First Closing;
(1,000,000c) An aggregate of seven hundred twelve thousand five hundred (712,500) unregistered newly issued shares (the “Contingent Shares”) of CTI Titan Common Stock, subject to stock splits, stock dividends, reclassifications reclassifications, recapitalizations, reorganizations and reorganizationsother similar events between the date hereof and the Second Closing (as defined below), to be issued and delivered to the PolaRx DTI Stockholders on or before the second closing date, which shall be the earlier of, (x) in accordance with Appendix A within thirty (30) days following after the first New Drug Application approved by of the U.S. Food and Drug Administration submitted by CTI following events (each, a “Trigger Event”): (i) Positive Scientific Results from a Pivotal Clinical Trial incorporating the DITPA Product, (ii) Titan, Survivor Corporation or an affiliate assignee thereof entering into an exclusive, semi-exclusive or sublicensee non-exclusive agreement with a third party to market or sell the DITPA Product in a Major Territory, (iii) the acceptance of CTI an NDA filing with respect any regulatory agency of any country incorporating the DITPA Product or (iv) a change of control of Titan or the Surviving Corporation, an assignee or successor thereof, or any entity having rights to an Arsenic the DITPA Product, in which a single entity or group of related entities, acquires, or gains the right to acquire, directly or indirectly, an interest in DTI or Titan, including their successors and affiliates, of greater than fifty percent (x50%) in either entity, directly or in the day preceding the fifth anniversary of the Closing Date aggregate (the earlier such date shall be referred to herein as the "“Second Closing"”); provided, however, that if no Trigger Event occurs on or prior to the fifth anniversary of the Effective Time, the DTI Stockholders shall have no right to receive the Contingent Shares;
(cd) Two million Either $102,750 or thirty-seven thousand five hundred (2,000,00037,500) unregistered newly issued shares of CTI Titan Common Stock, subject to stock splits, stock dividends, reclassifications and reorganizations, Stock (the “UA Shares”) to be issued and delivered to the PolaRx Stockholders UA at the Second Closing;
(d) $4,000,000 in cashClosing if a Trigger Event occurs on or prior to the fifth anniversary of the Effective Time, the form of contingent merger consideration to be paid and delivered to the PolaRx Stockholders no later than March 31, 2003.
(e) (1) a number of unregistered newly issued shares of CTI Common Stock having a Fair Market Value of five million dollars ($5,000,000); (2) $5,000,000 in cash, or (3) a mixture of cash and stock under (1) and (2) above, at the sole election discretion of CTI, to be UA. The term Contingent Shares as used herein shall include the UA Shares if issued or paid and delivered to the PolaRx Stockholders within thirty (30) days following the end of the first calendar quarter in which aggregate Net Sales of Arsenic Products sold by CTI, affiliates and sublicensees of CTI equal or exceed twenty million dollars ($20,000,000) for the previous four (4) calendar quarters;
(f) Until the later of, (x) the last patent to expire contained in the patent rights owned or licensed by PolaRx and included in the PolaRx Assets, or (y) seven (7) years following the first commercial sale of an Arsenic Product by CTI, its sublicensees or affiliates; within thirty (30) days following the end of every calendar year in which Net Sales of Arsenic Products sold by CTI, its sublicensees and affiliates exceed forty million dollars ($40,000,000), CTI shall (1) issue to the PolaRx Stockholders (or to an exchange fund or escrow arrangement for the benefit of the PolaRx Stockholders, which exchange fund or escrow agreement shall be agreed to in writing by the PolaRx Representative), a number of shares of CTI Common Stock having a Fair Market Value equal to two percent (2%) of Net Sales of Arsenic Products sold by CTI, its sublicensees or affiliates during the previous calendar year; (2) make a cash payment to the PolaRx Stockholders (or to an exchange fund or escrow arrangement for the benefit of the PolaRx Stockholders, which exchange fund or escrow agreement shall be agreed to in writing by the PolaRx Representative) equal to two percent (2%) of Net Sales of Arsenic Products sold by CTI, its sublicensees or affiliates during the previous calendar year, or (3) a mixture of cash and stock under (1) and (2) above. If at the time that any payment shall be required pursuant to this Section 1.4, CTI does not have a class of common stock that is then publicly traded on a national securities exchange, than any such payment shall be made in cash in the applicable amount. Any issuances of stock by CTI under Sections 1.4(e) and (f) shall be unlegended unless required by law or issued to an affiliate1.4(d)."
Appears in 1 contract
The Merger Consideration. As of (a) The consideration to be paid by the Effective Time, as a result of Buyer for the Shares pursuant to the Merger and without any other action on the part of the stockholders, all of the outstanding shares of common stock, $0.001 par value per share, of PBAC (the "PBAC Common StockMERGER CONSIDERATION") shall be converted into shares of common stock consist of the Surviving Corporation Basic Merger Consideration (as defined in Section 2.2(b) below) and the Contingent Merger Considerations (as defined in Section 2.3(a) below).
(b) For the purposes of this Agreement, the term "BASIC MERGER CONSIDERATION" shall consist of the sum of (i) Three Million Two Hundred Thirty-Four Thousand One Hundred Fifty-Six Dollars ($3,234,156), plus the Net Book Value (as defined in Section 2.2(g) below).
(i) At the Closing, the Sellers' Agent shall deliver to the Buyer a certificate setting forth the Sellers' estimate of the Net Book Value (the "PolaRx Common ESTIMATED NET BOOK VALUE"). Subject to the provisions of Section 2.2(g) below, at the Closing, provided that such estimate of the Net Book Value shall be acceptable to the Buyer (such estimate and the Buyer's acceptance thereof to be without prejudice to the rights of the parties under Section 2.2(g) below), the Buyer shall issue and deliver to the Sellers, pro rata according to the respective numbers of the Shares set forth opposite their names on Exhibit A hereto, that number of whole shares of the Buyer's Class A Convertible Preferred Stock, Series III (the "PREFERRED STOCK"), obtained by dividing the Basic Merger Consideration (for this purpose only, calculated with reference to the Estimated Net Book Value) by $1,000. No fractional shares of Preferred Stock shall be issued; any such fraction of a share of Preferred Stock shall be paid in cash at the rate of $1,000 per whole share of Preferred Stock. The Preferred Stock shall have such rights and preferences as are set forth in the Statement of Rights and Preferences of Preferred Stock attached as Exhibit B to the Amended Asset Purchase Agreement (the "STATEMENT OF RIGHTS AND PREFERENCES"). No portion of the Basic Merger Consideration shall be paid in cash, except for any fractional shares of Preferred Stock and any adjustments based upon the Net Book Value pursuant to Subsection 2.2(g) below.
(A) The Buyer will use its best reasonable efforts to include all of the shares of PolaRx outstanding immediately prior to the Effective Time shallBuyer's Class A Common Stock, at the Effective Time, by virtue of the Merger and without any action on the part of the stockholders, be automatically converted into the shares of CTI Common Stock (as hereinafter defined) and additional consideration upon subsequent closing dates, for aggregate consideration (the "Merger Consideration") by virtue of the Merger and without any action on the part of the stockholders and be converted into the right of such PolaRx Stockholders to receive that portion of the Merger Consideration (as defined below) set forth across from their names in Schedule 1 (the "PolaRx Stockholders"). Fractional shares shall be rounded up or down to the nearest whole number. The Merger Consideration shall be:
(a) Two million (2,000,000) unregistered newly issued shares of CTI common stock, no $.01 par value per share (the "CTI Common StockCOMMON STOCK") which are issuable upon conversion of the shares of Preferred Stock held by certain of the Sellers (the "PIGGYBACK SELLERS"), as set forth in subparagraphs (I) - (III) below (the "PIGGYBACK COMMON SHARES"), in an underwritten public offering of the Buyer's Common Stock (the "PUBLIC OFFERING"), in accordance with the Securities Act of 1933, as amended (the "SECURITIES ACT"), on a "piggyback" registration basis on or prior to be issued April 30, 1999. Each of the Piggyback Sellers shall sell in the Public Offering all of his/her Piggyback Common Shares which the Buyer is able to register in the Public Offering (unless the managing or lead managing underwriter in the Public Offering requires that the Piggyback Sellers, individually or in the aggregate, sell fewer than all of the shares they have elected to sell (as set forth in subparagraphs (I) - (III) below) or unless the Buyer and delivered to the PolaRx Stockholders at the Effective Time;
(b) One million (1,000,000) unregistered newly issued Piggyback Sellers mutually agree that a fewer number of such shares of CTI Common Stock, subject to stock splits, stock dividends, reclassifications Stock will be registered and reorganizations, to be issued and delivered to the PolaRx Stockholders on or before the second closing date, which sold). The Piggyback Common shares shall be the earlier of, (x) within thirty (30) days following the first New Drug Application approved by the U.S. Food and Drug Administration submitted by CTI or an affiliate or sublicensee of CTI with respect to an Arsenic Product, or (x) the day preceding the fifth anniversary of the Closing Date (the earlier such date shall be referred to herein determined as the "Second Closing");
(c) Two million (2,000,000) unregistered newly issued shares of CTI Common Stock, subject to stock splits, stock dividends, reclassifications and reorganizations, to be issued and delivered to the PolaRx Stockholders at the Second Closing;
(d) $4,000,000 in cash, to be paid and delivered to the PolaRx Stockholders no later than March 31, 2003.
(e) (1) a number of unregistered newly issued shares of CTI Common Stock having a Fair Market Value of five million dollars ($5,000,000); (2) $5,000,000 in cash, or (3) a mixture of cash and stock under (1) and (2) above, at the sole election of CTI, to be issued or paid and delivered to the PolaRx Stockholders within thirty (30) days following the end of the first calendar quarter in which aggregate Net Sales of Arsenic Products sold by CTI, affiliates and sublicensees of CTI equal or exceed twenty million dollars ($20,000,000) for the previous four (4) calendar quarters;
(f) Until the later of, (x) the last patent to expire contained in the patent rights owned or licensed by PolaRx and included in the PolaRx Assets, or (y) seven (7) years following the first commercial sale of an Arsenic Product by CTI, its sublicensees or affiliates; within thirty (30) days following the end of every calendar year in which Net Sales of Arsenic Products sold by CTI, its sublicensees and affiliates exceed forty million dollars ($40,000,000), CTI shall (1) issue to the PolaRx Stockholders (or to an exchange fund or escrow arrangement for the benefit of the PolaRx Stockholders, which exchange fund or escrow agreement shall be agreed to in writing by the PolaRx Representative), a number of shares of CTI Common Stock having a Fair Market Value equal to two percent (2%) of Net Sales of Arsenic Products sold by CTI, its sublicensees or affiliates during the previous calendar year; (2) make a cash payment to the PolaRx Stockholders (or to an exchange fund or escrow arrangement for the benefit of the PolaRx Stockholders, which exchange fund or escrow agreement shall be agreed to in writing by the PolaRx Representative) equal to two percent (2%) of Net Sales of Arsenic Products sold by CTI, its sublicensees or affiliates during the previous calendar year, or (3) a mixture of cash and stock under (1) and (2) above. If at the time that any payment shall be required pursuant to this Section 1.4, CTI does not have a class of common stock that is then publicly traded on a national securities exchange, than any such payment shall be made in cash in the applicable amount. Any issuances of stock by CTI under Sections 1.4(e) and (f) shall be unlegended unless required by law or issued to an affiliate."follows:
Appears in 1 contract
The Merger Consideration. As of the Effective Time, as a result of the Merger and without any other action on the part of the stockholders, all of the outstanding shares of common stock, $0.001 par value per share, of PBAC (the "PBAC Common Stock") shall be converted into shares of common stock of the Surviving Corporation (the "PolaRx Common Stock") and all of the shares of PolaRx outstanding immediately prior to the Effective Time shall, at the Effective Time, by virtue of the Merger and without any action on the part of the stockholders, be automatically converted into the shares of CTI Common Stock (as hereinafter defined) and additional consideration upon subsequent closing dates, for The aggregate consideration (the "Merger Consideration") by virtue of the Merger and without any action on the part of the stockholders and be converted into the right of such PolaRx Stockholders to receive that portion of the Merger Consideration (as defined below) set forth across from their names in Schedule 1 (the "PolaRx Stockholders"). Fractional shares shall be rounded up or down to the nearest whole number. The Merger Consideration shall be:
(a) Two million An aggregate of Four Million Nine Hundred Thousand (2,000,0004,900,000) restricted, unregistered newly issued shares (the “First Shares”) of CTI Raptor common stock, no par value $.001 per share ("CTI “Raptor Common Stock"”), to be issued and delivered to the PolaRx Stockholders Securityholders at the Effective TimeTime (the “First Closing”) in accordance with Appendix B;
(b) One million Comprised of the amounts set forth below, on a one-time basis, if at all, an aggregate of Two Million Four Hundred Thousand (1,000,0002,400,000) restricted, unregistered newly issued shares (the “Contingent Shares”) of CTI Raptor Common Stock, payable in such amounts are set forth below to the extent that a Trigger Event is achieved with respect to such amount and subject to stock splits, stock dividends, reclassifications reclassifications, recapitalizations, reorganizations and reorganizationsother similar events between the date hereof and the Milestone Termination Date (as defined below) with respect to the Trigger Event to which the payment of such amount relates, to be issued and delivered to the PolaRx Stockholders on or before the second closing date, which shall be the earlier of, (x) Securityholders in accordance with Appendix B with respect to a Trigger Event within thirty (30) days following after the first New Drug Application approved occurrence of such Trigger Event (any payment made by Raptor pursuant to any of Subsections 1.5(b)(2) and 1.5(b)(4), if any, are each referred to herein individually as a “Milestone Payment” and collectively as the U.S. Food and Drug Administration submitted “Milestone Payments”):
(1) Reserved; LEGAL_US_W # 57260898 3
(2) Five Hundred Thousand (500,000) restricted, unregistered shares of Raptor Common Stock upon the receipt by CTI Bennu of Marketing Approval for a Cystinosis Product from the applicable Regulatory Agency in a Major Market;
(3) Reserved;
(4) One Million Nine Hundred Thousand (1,900,000) restricted, unregistered shares of Raptor Common Stock upon the receipt by Bennu of Marketing Approval for a Non-C Product from the applicable Regulatory Agency in a Major Market; and
(5) an amount equal to Two Million Four Hundred Thousand (2,400,000) restricted, unregistered shares of Raptor Common Stock, less the aggregate of all Milestone Payments made or an affiliate owing by Bennu, upon, if at all, the consummation of any transaction or sublicensee series of CTI with respect related transactions that results in the sale of all or substantially all of the Encode Assets other than to an Arsenic Product, or (x) the day preceding the fifth anniversary Affiliate of the Closing Date Surviving Corporation or Raptor in such case where the Encode Assets are valued at no less than $2.5 million (a “Sale”) (each of the earlier pre-conditions set forth in Subsections 1.5(b)(2), 1.5(b)(4), and 1.5(b)(5), a “Trigger Event” and collectively as the “Trigger Events”); Any of such date Trigger Events shall be referred to herein as the "a “Second Closing"”; provided, however, no Securityholder shall have any right to receive any Milestone Payment or Contingent Shares for any Trigger Event occurring after the fifth anniversary of the Effective Time (the “Milestone Termination Date”);. Notwithstanding anything herein to the contrary, the parties hereto understand and agree that any Milestone Payment made by Raptor pursuant to any Milestone under any of Subsections 1.5(b)(2) and 1.5(b)(4) will be made on a one-time basis notwithstanding any subsequent Milestone accomplished under such subparagraph thereafter and that the aggregate of all Milestone Payments shall not under any circumstances exceed, in the aggregate, Two Million Four Hundred Thousand (2,400,000) restricted, unregistered shares of Raptor Common Stock. The parties hereto also understand and agree that each Securityholder’s right to receive any Milestone Payments (other than those already earned and owing by Raptor) shall cease upon the occurrence of a Sale notwithstanding any subsequent Milestone accomplished thereafter.
(c) Two million Notwithstanding anything in this Agreement to the contrary, Raptor shall have the option, in its sole discretion, to recoup in full all Losses incurred by it or any of its Affiliates arising from any claim for indemnification pursuant to Section 5, and credited against any Milestone Payment then due and owing or to be due and owing under this Agreement. Raptor shall have the right to designate, reverse and re-designate any prospective application of such recoupment. Raptor, Encode and the Stockholder Representative agree that whether a claim for indemnification exists will be initially determined in the sole discretion of the board of directors of Raptor (2,000,000the “Board”) unregistered newly issued shares and Raptor will thereafter provide Encode and the Stockholder Representative with written notice of CTI Common Stocksuch determination and reasonable detail supporting such determination and claim (the “Claim Notice”). During the period beginning on the date that the Claim Notice is sent by Raptor to Encode and the Stockholder Representative and ending on the date on which any dispute between Raptor and Encode with respect to such Claim Notice is resolved pursuant to arbitration in accordance with Section 6.13 (or otherwise resolved pursuant to a written agreement between the Raptor and Encode), Raptor, Encode and the Stockholder LEGAL_US_W # 57260898 4 Representative agree that neither Bennu nor Raptor shall have any obligation to pay the Milestone Payments or any portion thereof, and during such time, all Milestone Payments shall be tolled and suspended and no interest shall accrue thereon during such period. If the arbitrator resolves the dispute that is the subject of the Claim Notice in a manner adverse to Raptor such that Raptor is obligated to continue to make payments of the Milestone Payments to the Securityholders, then subject to stock splitsthe terms and conditions contained herein, stock dividends, reclassifications the suspension of the payment of the Milestone Payments which were otherwise due and reorganizations, to be issued owing shall cease and delivered to the PolaRx Stockholders at the Second Closing;
(d) $4,000,000 in cash, Milestone Payments shall thereafter continue to be paid and delivered to the PolaRx Stockholders no later than March 31, 2003in accordance with this Agreement.
(e) (1) a number of unregistered newly issued shares of CTI Common Stock having a Fair Market Value of five million dollars ($5,000,000); (2) $5,000,000 in cash, or (3) a mixture of cash and stock under (1) and (2) above, at the sole election of CTI, to be issued or paid and delivered to the PolaRx Stockholders within thirty (30) days following the end of the first calendar quarter in which aggregate Net Sales of Arsenic Products sold by CTI, affiliates and sublicensees of CTI equal or exceed twenty million dollars ($20,000,000) for the previous four (4) calendar quarters;
(f) Until the later of, (x) the last patent to expire contained in the patent rights owned or licensed by PolaRx and included in the PolaRx Assets, or (y) seven (7) years following the first commercial sale of an Arsenic Product by CTI, its sublicensees or affiliates; within thirty (30) days following the end of every calendar year in which Net Sales of Arsenic Products sold by CTI, its sublicensees and affiliates exceed forty million dollars ($40,000,000), CTI shall (1) issue to the PolaRx Stockholders (or to an exchange fund or escrow arrangement for the benefit of the PolaRx Stockholders, which exchange fund or escrow agreement shall be agreed to in writing by the PolaRx Representative), a number of shares of CTI Common Stock having a Fair Market Value equal to two percent (2%) of Net Sales of Arsenic Products sold by CTI, its sublicensees or affiliates during the previous calendar year; (2) make a cash payment to the PolaRx Stockholders (or to an exchange fund or escrow arrangement for the benefit of the PolaRx Stockholders, which exchange fund or escrow agreement shall be agreed to in writing by the PolaRx Representative) equal to two percent (2%) of Net Sales of Arsenic Products sold by CTI, its sublicensees or affiliates during the previous calendar year, or (3) a mixture of cash and stock under (1) and (2) above. If at the time that any payment shall be required pursuant to this Section 1.4, CTI does not have a class of common stock that is then publicly traded on a national securities exchange, than any such payment shall be made in cash in the applicable amount. Any issuances of stock by CTI under Sections 1.4(e) and (f) shall be unlegended unless required by law or issued to an affiliate."
Appears in 1 contract
