Common use of Agreed Contingent Payment Clause in Contracts

Agreed Contingent Payment. In the event that Seller delivers a Dispute Notice within the Dispute Period, Seller and Buyer shall for a period of not less than thirty (30) days after delivery of the Dispute Notice attempt in good faith to resolve the Sales/Profit Contingent Payment Amount that is in dispute (the “Disputed Contingent Payment Amount”), and mutually determine any adjustments to such Sales/Profit Contingent Payment Amount (the “Agreed Contingent Payment Amount”). Buyer and Seller shall, subject to the execution of a confidentiality agreement in substantially the form attached hereto as Exhibit B, provide each other with such information, records and material kept in the ordinary course of business in such Party’s possession and which such Party may disclose without violating confidentiality obligations to third parties, as is reasonably necessary and appropriate in attempting to resolve such Disputed Contingent Payment Amount, including the delivery of a copy to Seller of any such information, records and material, to the extent then available, that was used to calculate the amount of Worldwide Net Sales for the Sales Payment Product, Worldwide Gross Profit for the Gross Profit Payment Product, Worldwide Ancillary Gross Profit for the Contingent Payment Products, “Worldwide Net Sales” (as defined in the LipoSonix Agreement) for the “Sales Payment Product” (as defined in the LipoSonix Agreement), “Worldwide Gross Profit” (as defined in the LipoSonix Agreement) for the “Gross Profit Payment Product” (as defined in the LipoSonix Agreement), “Worldwide Ancillary Gross Profit” (as defined in the LipoSonix Agreement) for the “Contingent Payment Products” (as defined in the LipoSonix Agreement) and the Sales/Profit Contingent Payment Amount set forth on each relevant Contingent Payment Certificate. If the final Agreed Contingent Payment Amount determined pursuant to this Section 2.7(e) is greater than the Sales/Profit Contingent Payment Amount set forth on the relevant Contingent Payment Certificate by an amount equal to more than $1,000,000, Buyer shall pay all of the reasonable out-of-pocket costs and expenses actually incurred by Seller in connection with such Contingent Payment Audit.

Agreed Contingent Payment. In the event that Seller the Equityholders’ Representative delivers a Dispute Notice within the Dispute Period, Seller the Equityholders’ Representative and Buyer Parent shall for a period of not less than thirty (30) days after delivery of the Dispute Notice attempt in good faith to resolve the Sales/Profit Contingent Payment Amount that is in dispute (the “Disputed Contingent Payment Amount”), and mutually determine any adjustments to such Sales/Profit Contingent Payment Amount (the “Agreed Contingent Payment Amount”). Buyer Parent and Seller the Equityholders’ Representative shall, subject to the execution of a confidentiality agreement in substantially the form attached hereto as Exhibit B3.11(c), provide each other with such information, records and material kept in the ordinary course of business in such Partyparty’s possession and which such Party party may disclose without violating confidentiality obligations to third parties, as is reasonably necessary and appropriate in attempting to resolve such Disputed Contingent Payment Amount, including the delivery of a copy to Seller the Equityholders’ Representative of any such information, records and material, to the extent then available, that was used to calculate the amount of Worldwide Net Sales for the Sales Payment Product, Worldwide Gross Profit for the Gross Profit Payment Product, Worldwide Ancillary Gross Profit for the Contingent Payment Products, “Worldwide Net Sales” (as defined in the LipoSonix Agreement) for the “Sales Payment Product” (as defined in the LipoSonix Agreement), “Worldwide Gross Profit” (as defined in the LipoSonix Agreement) for the “Gross Profit Payment Product” (as defined in the LipoSonix Agreement), “Worldwide Ancillary Gross Profit” (as defined in the LipoSonix Agreement) for the “Contingent Payment Products” (as defined in the LipoSonix Agreement) Products and the Sales/Profit Contingent Payment Amount set forth on each relevant Contingent Payment Certificate. If the final Agreed Contingent Payment Amount determined pursuant to this Section 2.7(e3.11(e) is greater than the Sales/Profit Contingent Payment Amount set forth on the relevant Contingent Payment Certificate by an amount equal to more than $1,000,000, Buyer Parent shall pay all of the reasonable out-of-pocket costs and expenses actually incurred by Seller the Equityholders’ Representative in connection with such Contingent Payment Audit.

Agreed Contingent Payment. In the event that Seller the Stockholder Representative Committee delivers a Dispute Notice within the Dispute Period, Seller the Stockholder Representative Committee and Buyer Parent shall for a period of not less than thirty (30) days after delivery of the Dispute Notice attempt in good faith to resolve the Sales/Profit Sales Contingent Payment Amount that is in dispute (the “Disputed Contingent Payment Amount”), and mutually determine any adjustments to such Sales/Profit Sales Contingent Payment Amount (the “Agreed Contingent Payment Amount”). Buyer Parent and Seller the Stockholder Representative Committee shall, subject to the execution of a confidentiality agreement in substantially form and substance reasonably satisfactory to the form attached hereto as Exhibit Bdelivering party, provide each other with such information, records and material kept in the ordinary course of business in such Partyparty’s possession and which such Party party may disclose without violating confidentiality obligations to third parties, as is reasonably necessary and appropriate in attempting to resolve such Disputed Contingent Payment Amount, including the delivery of a copy to Seller the Stockholder Representative Committee of any such information, records and material, to the extent then available, that was used to calculate the amount of Worldwide Net Sales for and the Sales Payment Product, Worldwide Gross Profit for the Gross Profit Payment Product, Worldwide Ancillary Gross Profit for the Contingent Payment Products, “Worldwide Net Sales” (as defined in the LipoSonix Agreement) for the “Sales Payment Product” (as defined in the LipoSonix Agreement), “Worldwide Gross Profit” (as defined in the LipoSonix Agreement) for the “Gross Profit Payment Product” (as defined in the LipoSonix Agreement), “Worldwide Ancillary Gross Profit” (as defined in the LipoSonix Agreement) for the “Contingent Payment Products” (as defined in the LipoSonix Agreement) and the Sales/Profit Contingent Payment Amount set forth on each relevant Contingent Payment Certificate. If the final Agreed Contingent Payment Amount determined pursuant to this Section 2.7(e1.8(e) is greater than the Sales/Profit Sales Contingent Payment Amount set forth on the relevant Contingent Payment Certificate by an amount equal to more than the greater of (i) $1,000,0001,000,000 or (ii) ten percent (10%) of the Sales Contingent Payment Amount set forth in the relevant Contingent Payment Certificate, Buyer Parent shall pay all of the reasonable out-of-pocket costs and expenses actually incurred by Seller the Stockholder Representative Committee in connection with such Contingent Payment Audit.

Agreed Contingent Payment. In the event that Seller the Holders Representative delivers a Dispute Notice within the Contingent Payment Dispute Period, Seller the Holders Representative and Buyer shall Parent shall, for a period of not less than thirty (30) days after the later of delivery of the Dispute Notice or conclusion of any Contingent Payment Audit demanded by the Holders Representative, attempt in good faith to resolve the Sales/Profit all Contingent Payment Amount Amount(s) that is is/are in dispute (the “each, a "Disputed Contingent Payment Amount”"), and mutually determine any adjustments to such Sales/Profit Contingent Payment Amount Amount(s) (the “each, an "Agreed Contingent Payment Amount”"). Buyer Parent and Seller the Holders Representative shall, subject to the execution of a confidentiality agreement in substantially form and substance reasonably satisfactory to the form attached hereto as Exhibit Bdelivering party, provide each other with such information, records and material kept in the ordinary course of business in such Party’s party's possession and which such Party party may disclose without violating confidentiality obligations to third parties, as is reasonably necessary and appropriate in attempting to resolve any such Disputed Contingent Payment Amount, including the delivery of a copy to Seller the Holders Representative of any such information, records and material, to the extent then available, that was used to calculate the amount of Worldwide Net Sales for the Sales Payment Product, Worldwide Gross Profit for the Gross Profit Payment Product, Worldwide Ancillary Gross Profit for and the Contingent Payment Products, “Worldwide Net Sales” (as defined in the LipoSonix AgreementAmount(s) for the “Sales Payment Product” (as defined in the LipoSonix Agreement), “Worldwide Gross Profit” (as defined in the LipoSonix Agreement) for the “Gross Profit Payment Product” (as defined in the LipoSonix Agreement), “Worldwide Ancillary Gross Profit” (as defined in the LipoSonix Agreement) for the “Contingent Payment Products” (as defined in the LipoSonix Agreement) and the Sales/Profit Contingent Payment Amount set forth on each relevant Contingent Payment Certificate. If the any final Agreed Contingent Payment Amount determined pursuant to this Section 2.7(e2.7(j) is greater than the Sales/Profit corresponding Contingent Payment Amount set forth on the relevant Contingent Payment Certificate by an amount equal to more than $1,000,000the greater of (i) []* or (ii) five percent (5%) of the applicable Contingent Payment Amount set forth in the relevant Contingent Payment Certificate, Buyer Parent shall pay all of the reasonable out-of-pocket costs and expenses actually incurred by Seller the Holders Representative in connection with such Contingent Payment Audit. If any final Agreed Contingent Payment Amount determined pursuant to this Section 2.7(j) is less than the corresponding Contingent Payment Amount set forth on the relevant Contingent Payment Certificate, then (x) Holders Representative shall pay all of the reasonable out-of-pocket costs and expenses actually incurred by Parent in connection with such Contingent Payment Audit and (y) Parent shall be entitled to offset the difference between the Contingent Payment Amount set forth on the relevant Contingent Payment Certificate and such lesser amount against any and all amounts that Parent would otherwise be required to pay pursuant to this Section 2.7 (after giving effect to any other adjustments thereto pursuant to this Section 2.7). * Confidential Treatment Requested. Omitted portions filed with the Commission.