than two
(2) business days prior to the Technology Closing Date, by wire transfer in
United States dollars of immediately available funds to an account designated in
writing by Seller.
Section 1.5
Additional Purchase Price.
(A)
MILESTONES; MILESTONE PAYMENTS.
FROM AND AFTER THE TECHNOLOGY
CLOSING DATE, IN ADDITION TO THE CONSIDERATION SET FORTH IN SECTION 1.4 ABOVE,
PURCHASER SHALL, SUBJECT TO, AND CONTINGENT UPON ACHIEVEMENT OF THE
POST-TECHNOLOGY CLOSING PERFORMANCE MILESTONES OF THE BUSINESS SET FORTH BELOW
(EACH, A "MILESTONE") NOT LATER THAN THE APPLICABLE DATE FOR SATISFACTION OF
EACH MILESTONE SET FORTH BELOW (EACH A "MILESTONE EXPIRATION DATE"), PAY TO
SELLER AN AMOUNT OF CASH (IN UNITED STATES DOLLARS OF IMMEDIATELY AVAILABLE
FUNDS) OR COMMON STOCK, PAR VALUE $0.001 PER SHARE, OF PURCHASER ("PURCHASER
COMMON STOCK") (THE FORM OF PAYMENT OF WHICH IS TO BE DETERMINED IN THE SOLE
DISCRETION OF PURCHASER), EQUAL TO THE FIRST MILESTONE PAYMENT, SECOND MILESTONE
PAYMENT, THIRD MILESTONE PAYMENT, FOURTH MILESTONE PAYMENT, FIFTH MILESTONE
PAYMENT AND/OR SIXTH MILESTONE PAYMENT, AS APPLICABLE (THE "APPLICABLE MILESTONE
PAYMENT") AND EACH MILESTONE SHALL BE INDEPENDENT OF EACH OTHER MILESTONE AND
MAY BE SATISFIED AND PAYMENT BECOME DUE THEREFORE REGARDLESS OF NON-SATISFACTION
OF ANY OTHER MILESTONE; PROVIDED, HOWEVER, THAT (I) PURCHASER SHALL NOT ISSUE
SHARES OF PURCHASER COMMON STOCK IN RESPECT OF ANY APPLICABLE MILESTONE PAYMENT
UNLESS SUCH SHARES OF PURCHASER COMMON STOCK MAY BE RE-SOLD BY SELLER PURSUANT
TO RULE 144 OF THE RULES AND REGULATIONS PROMULGATED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") ON THE DATE OF SUCH ISSUANCE, (II) IF
PURCHASER ELECTS TO ISSUE SHARES OF PURCHASER COMMON STOCK IN RESPECT OF ANY
APPLICABLE MILESTONE PAYMENT, THEN PRIOR TO SUCH ISSUANCE AND UPON REQUEST BY
THE PURCHASER, SELLER SHALL DELIVER TO PURCHASER SUCH REPRESENTATIONS AND
WARRANTIES AS PURCHASER SHALL REASONABLY REQUEST FOR PURPOSES OF EXEMPTING THE
ISSUANCE OF SUCH SHARES FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND (III) IF PURCHASER ELECTS TO ISSUE SHARES OF PURCHASER COMMON STOCK IN
RESPECT OF ANY APPLICABLE MILESTONE PAYMENT, THE NUMBER OF SHARES OF PURCHASER
COMMON STOCK TO BE ISSUED SHALL BE EQUAL TO THE APPLICABLE MILESTONE PAYMENT
DIVIDED BY THE PURCHASER COMMON STOCK VALUE.
THE OBLIGATIONS OF PURCHASER UNDER
THIS SECTION 1.5(A) ARE SUBJECT TO THE PROVISIONS OF SECTION 1.5(C) BELOW
(REGARDING PURCHASER'S RIGHTS OF SET-OFF).
FOR AVOIDANCE OF DOUBT, IN NO EVENT
SHALL THE SUM OF ALL APPLICABLE MILESTONE PAYMENTS MADE BY PURCHASER TO SELLER
UNDER THIS SECTION 1.5 EXCEED FIFTY MILLION DOLLARS ($50,000,000) PLUS OR MINUS
THE WIP VALUE (THE "MAXIMUM MILESTONE AMOUNT").
(I)
IF AT ANY TIME FOLLOWING THE TECHNOLOGY CLOSING DATE BUT AT OR
PRIOR TO APRIL 15, 2009, SELLER SHALL HAVE DELIVERED TO PURCHASER AN AGGREGATE
OF 125,000 CUBIC CENTIMETERS OF PRODUCT (THE "FIRST DELIVERY THRESHOLD") IN
ACCORDANCE WITH THE TERMS AND PROVISIONS OF, AND SUBJECT TO THE SPECIFICATIONS
SET FORTH IN, THE MANUFACTURING AGREEMENT,
5
PURCHASER SHALL PAY TO SELLER FIVE MILLION DOLLARS ($5,000,000) (THE "FIRST
MILESTONE PAYMENT").
(II)
IF AT ANY TIME FOLLOWING THE TECHNOLOGY