Common use of Contingent Consideration Clause in Contracts

Contingent Consideration. The Contingent Consideration shall become payable and/or issuable to each Selling Securityholder within 10 Business Days of the Contingent Consideration Date in accordance with this Section 1.5(c) (and subject to Section 1.5(a)), subject to and in accordance with Section 1.6, including any reduction for an amount of cash up to such Selling Securityholder’s Pro Rata Share of the Holdback Amount withheld pursuant to Section 1.6(b), with each Selling Securityholder receiving an amount of cash and/or stock equal to (a) the percentage set forth in the Spreadsheet opposite such Selling Securityholder’s name under the heading “Contingent Consideration Percentage” multiplied by (b) the Contingent Consideration. The “Contingent Consideration Date” shall mean the earlier of (i) the date that is 30 months following the Closing Date and (ii) the date upon which $50 million in gross proceeds (net of transaction fees and expenses, including any broker fees, the “Contingent Threshold Amount”) is received by Purchaser from investors pursuant to bona fide equity financings in exchange for the issuance of Purchaser Series B Stock. If the Contingent Threshold Amount (A) is met prior to the Contingent Consideration Date, then the Contingent Consideration shall be an amount payable in cash equal to $50 million, or (B) is not met prior to the Contingent Consideration Date, then the Contingent Consideration shall be (I) an amount payable in cash equal to the gross proceeds (net of transaction fees and expenses, including any broker fees) received by Purchaser from investors pursuant to bona fide equity financings during such 30-month period in exchange for the issuance of Purchaser Series B Stock (the “Actual Financing Proceeds”), plus (II) a number of shares of Purchaser Series B Stock equal to (x) two multiplied by (y) (i) (1) the Contingent Threshold Amount minus (2) the Actual Financing Proceeds, divided by (ii) the Purchaser Series B Stock Price (such amount of cash paid and/or shares issued, the “Contingent Consideration”). Notwithstanding anything to the contrary in the foregoing, to the extent any such Selling Securityholder is not able to provide evidence satisfactory to Purchaser that such Selling Securityholder is an accredited investor as defined in Rule 501(a) of Regulation D under the Securities Act (or otherwise provide evidence satisfactory to Purchaser that another applicable exemption under the Securities Act is available to rely upon), then Purchaser reserves the right, in its sole discretion, to replace the share issuance to such Selling Securityholder pursuant to clause (II) of the prior sentence with a payment in cash equal to (x) the Purchaser Series B Stock Price multiplied by (y) the number of shares that otherwise would have been issuable to such Selling Securityholder pursuant to clause (II) of the prior sentence (rounded down to the nearest cent).

Contingent Consideration. (a) For three consecutive Contingent Consideration Periods, additional annual payments shall be made to Company or its assigns on the conditions described herein and as a result of calculations described on Exhibit 2.10(a) attached hereto and incorporated herein (the "CONTINGENT PAYMENTS"). The Contingent Consideration Payments shall become payable and/or issuable be made in cash, Parent Common Stock or a combination thereof, at Buyer's sole discretion; provided that for purposes of determining the number of shares of Parent Common Stock, if any, to each Selling Securityholder within 10 Business Days be issued to Company or its assigns as part of the Contingent Consideration Date in accordance with this Section 1.5(c) (and subject Payment, the per share value of Parent Common Stock shall be equal to Section 1.5(a)), subject to and in accordance with Section 1.6, including any reduction for an amount of cash up to such Selling Securityholder’s Pro Rata the Per Share Value determined as of the Holdback Amount withheld pursuant to Section 1.6(b), with each Selling Securityholder receiving an amount of cash and/or stock equal to (a) Due Date following the percentage set forth in the Spreadsheet opposite such Selling Securityholder’s name under the heading “Contingent Consideration Percentage” multiplied Period for which any such Contingent Payment is due, without giving effect to any extension of any such Due Date; provided further that Buyer must make its election to use Parent Common Stock by giving written notice to Owners on or before the Due Date, and provided further that the aggregate value of Parent Common Stock issued in connection with Contingent Payments shall not exceed thirty percent (b30%) of the aggregate value of all Contingent Consideration. The “Payments, through and including the current Contingent Consideration Date” Payment; and provided further that Buyer shall mean not be entitled to use Parent Common Stock as part of a Contingent Payment if, on the earlier date of issuance, (i) the date that Parent Common Stock is 30 months following not registered under Section 12 of the Closing Date and Securities Exchange Act, or (ii) the date upon which $50 million in gross proceeds (net of transaction fees and expenses, including any broker fees, the “Contingent Threshold Amount”) is received by Purchaser from investors pursuant to bona fide equity financings in exchange for the issuance of Purchaser Series B Stock. If the Contingent Threshold Amount (A) is met prior to the Contingent Consideration Date, then the Contingent Consideration shall be an amount payable in cash equal to $50 million, or (B) Parent is not met prior to the Contingent Consideration Date, then the Contingent Consideration shall be (I) an amount payable current in cash equal to the gross proceeds (net of transaction fees and expenses, including any broker fees) received by Purchaser from investors pursuant to bona fide equity financings during such 30-month period in exchange for the issuance of Purchaser Series B Stock (the “Actual Financing Proceeds”), plus (II) a number of shares of Purchaser Series B Stock equal to (x) two multiplied by (y) (i) (1) the Contingent Threshold Amount minus (2) the Actual Financing Proceeds, divided by (ii) the Purchaser Series B Stock Price (such amount of cash paid and/or shares issued, the “Contingent Consideration”). Notwithstanding anything to the contrary in the foregoing, to the extent any such Selling Securityholder is not able to provide evidence satisfactory to Purchaser that such Selling Securityholder is an accredited investor as defined in Rule 501(a) of Regulation D its reporting obligations under the Securities Act (or otherwise provide evidence satisfactory Exchange Act. The parties agree that 1/26th of the Contingent Payment shall be paid to Purchaser that another applicable exemption under the Securities Act is available to rely upon), then Purchaser reserves the right, in its sole discretion, to replace the share issuance to such Selling Securityholder Keenan pursuant to clause (II) of the prior sentence Stock Purchase Agreement with a payment in cash equal to (x) the Purchaser Series B Stock Price multiplied by (y) the number of shares that otherwise would have been issuable to such Selling Securityholder pursuant to clause (II) of the prior sentence (rounded down to the nearest cent)him.

Contingent Consideration. The (a) If the revenue recognized by the Acquiror and/or the Company from license, maintenance, training and service fees for the Company's products or services calculated under Section 1.14(c) (the "Company Revenue") exceeds $10,000,000 for the period from the Closing Date to the first anniversary of the Closing Date (the "Measuring Period"), then the Acquiror shall deliver to the Stockholders, as set forth in Section 1.14(d), contingent consideration in an amount (the "Contingent Consideration") equal to the sum of (i) 1.625 MULTIPLIED BY the amount by which the Company Revenue exceeds $10,000,000 (up to and including a maximum of $18,000,000 in Company Revenue) PLUS (ii) 1.5 MULTIPLIED BY the amount by which the Company Revenue exceeds $18,000,000 (up to and including a maximum of $21,000,000 in Company Revenue). For purposes of this Agreement, "Contingent Shares" means the number of shares of Acquiror Stock to be delivered in connection with the Contingent Consideration, which number shall equal the quotient obtained by DIVIDING (A) the Contingent Consideration by (B) the Closing Stock Price determined as of the third trading day preceding the date of payment of the Contingent Consideration. For purposes of this Agreement, "Contingent Consideration Exchange Rate" means the number of shares of Acquiror Stock to be delivered in connection with the Contingent Consideration in respect of each share of Company Capital Stock, which shall become payable and/or issuable be equal to each Selling Securityholder within 10 Business Days the quotient obtained by DIVIDING (1) the number of Contingent Shares by (2) the Aggregate Common Number. Notwithstanding the forgoing, in no event shall the number of Contingent Shares together with the number of Closing Shares exceed 19.9% of the Acquiror Stock then outstanding; PROVIDED that if the number of Contingent Shares would cause such percentage to be exceeded, the Acquiror shall issue the maximum permitted number of Contingent Shares and pay the balance of the Contingent Consideration Date in accordance with this Section 1.5(c) cash (and subject the "Cash Contingent Consideration"); PROVIDED FURTHER that to Section 1.5(a)), subject to and in accordance with Section 1.6, including the extent any reduction for an amount of cash up to such Selling Securityholder’s Pro Rata Share of the Holdback Amount withheld pursuant to Section 1.6(b), with each Selling Securityholder receiving an amount of cash and/or stock equal to (a) the percentage set forth in the Spreadsheet opposite such Selling Securityholder’s name under the heading “Contingent Consideration Percentage” multiplied by (b) the Contingent Consideration. The “Contingent Consideration Date” shall mean the earlier of (i) the date that is 30 months following the Closing Date paid, any and (ii) the date upon which $50 million in gross proceeds (net of transaction fees and expenses, including any broker fees, the “Contingent Threshold Amount”) is received by Purchaser from investors pursuant to bona fide equity financings in exchange for the issuance of Purchaser Series B Stock. If the Contingent Threshold Amount (A) is met prior all imputed interest with respect to the Contingent Consideration Date, then pursuant to Section 483 or Section 1274 of the Contingent Consideration Code shall be an amount payable in cash equal to $50 million, or (B) is not met prior to the Contingent Consideration Date, then the Contingent Consideration shall be (I) an amount payable in cash equal to the gross proceeds (net of transaction fees and expenses, including any broker fees) received by Purchaser from investors pursuant to bona fide equity financings during such 30-month period in exchange for the issuance of Purchaser Series B Stock (the “Actual Financing Proceeds”), plus (II) a number of shares of Purchaser Series B Stock equal to (x) two multiplied by (y) (i) (1) the Contingent Threshold Amount minus (2) the Actual Financing Proceeds, divided by (ii) the Purchaser Series B Stock Price (such amount of cash paid and/or shares issued, the “Contingent Consideration”). Notwithstanding anything to the contrary in the foregoingdeemed paid, to the maximum extent any possible, from such Selling Securityholder is not able to provide evidence satisfactory to Purchaser that such Selling Securityholder is an accredited investor as defined in Rule 501(a) of Regulation D under the Securities Act (or otherwise provide evidence satisfactory to Purchaser that another applicable exemption under the Securities Act is available to rely upon), then Purchaser reserves the right, in its sole discretion, to replace the share issuance to such Selling Securityholder pursuant to clause (II) of the prior sentence with a payment in cash equal to (x) the Purchaser Series B Stock Price multiplied by (y) the number of shares that otherwise would have been issuable to such Selling Securityholder pursuant to clause (II) of the prior sentence (rounded down to the nearest cent)Cash Contingent Consideration.

Contingent Consideration. The Contingent Consideration shall become payable and/or issuable to each Selling Securityholder within 10 Business Days of the Contingent Consideration Date in accordance with this Section 1.5(c) (and subject to Section 1.5(a)), subject to and in accordance with Section 1.6, including any reduction for an amount of cash up to such Selling Securityholder’s Pro Rata Share of the Holdback Amount withheld pursuant to Section 1.6(b), with each Selling Securityholder receiving an amount of cash and/or stock equal to (a) As additional consideration for the percentage set forth Assets, in the Spreadsheet opposite such Selling Securityholder’s name under the heading “Contingent Consideration Percentage” multiplied by (b) the Contingent Consideration. The “Contingent Consideration Date” shall mean the earlier of (i) the date that is 30 months following the Closing Date and (ii) the date upon which $50 million in gross proceeds (net of transaction fees and expensesevent that, including any broker feeson or before September 21, 1997, the “Contingent Threshold Amount”Buyer or any subsidiary of the Buyer, in its sole and absolute discretion, enters into a binding agreement (the "Scripps Agreement") is received by Purchaser from investors pursuant to bona fide equity financings in exchange for provide ultrasound and non-invasive cardiovascular procedures to Scripps Health System ("Scripps"), the issuance of Purchaser Series B Stock. If the Contingent Threshold Amount (A) is met prior Buyer shall cause DHS, and DHS hereby agrees, to issue to the Contingent Consideration DateSeller (or, if the transactions contemplated by that certain Stock Purchase Agreement of even date herewith by and among DHS, DHS Management Services, Inc., and the Stockholder (the "Stock Purchase Agreement") have been consummated, then the Contingent Consideration shall be an amount payable in cash equal to $50 million, or (B) is not met prior to the Contingent Consideration Date, then the Contingent Consideration shall be (I) an amount payable in cash equal to the gross proceeds (net of transaction fees and expenses, including any broker fees) received by Purchaser from investors pursuant to bona fide equity financings during such 30-month period in exchange for the issuance of Purchaser Series B Stock (the “Actual Financing Proceeds”Stockholder), plus within thirty (II30) days after the execution and delivery of the Scripps Agreement by all parties thereto, a warrant to purchase a number of shares of Purchaser Series B Stock common stock of DHS ("Warrant Shares") equal to 10% of the number of dollars that the Buyer and the Stockholder agree in good faith to be the estimated gross revenues to be received by the Buyer and/or its subsidiaries under the Scripps Agreement during the first twelve months of the Scripps Agreement. The exercise price for the Warrant Shares under any warrant hereunder shall, subject to adjustment as provided in the warrant, be equal to the last reported sale price of the common stock of DHS (x"Common Stock") two multiplied by on the date on which the Scripps Agreement is fully executed and delivered, and the warrant shall be in substantially the form of Exhibit A --------- annexed hereto (y) (i) (1) the Contingent Threshold Amount minus (2) the Actual Financing Proceeds, divided by (ii) the Purchaser Series B Stock Price (such amount of cash paid and/or shares issued, the “Contingent Consideration”with all blanks appropriately completed). Notwithstanding anything to In the contrary in the foregoing, event and to the extent any such Selling Securityholder is not able to provide evidence satisfactory to Purchaser that such Selling Securityholder is an accredited investor as defined in Rule 501(a) of Regulation D the actual gross revenues received by the Buyer and its subsidiaries under the Securities Act Scripps Agreement during the first twelve months of the Scripps Agreement are greater or less than the estimated gross revenues utilized to calculate the initial number of Warrant Shares, then the parties shall, in good faith, within ninety (90) days after the close of the first twelve months under the Scripps Agreement, adjust the number of Warrant Shares (up or down) by a number equal to 10% (or otherwise provide evidence satisfactory to Purchaser that another applicable exemption under the Securities Act is available to rely upon), then Purchaser reserves the rightsuch adjusted percentage, in its sole discretionaccordance with Section 3.2(b) below, as was originally utilized to replace calculate the share issuance to such Selling Securityholder pursuant to clause (IInumber of Warrant Shares) of the prior sentence with a payment in cash equal to (x) dollar difference between such actual gross revenues and the Purchaser Series B Stock Price multiplied by (y) the number of shares that otherwise would have been issuable to such Selling Securityholder pursuant to clause (II) of the prior sentence (rounded down to the nearest cent)estimated gross revenues.

Contingent Consideration. The Contingent In addition, additional consideration (the "Additional Consideration") in an aggregate amount of not more than $1,750,000 (the "Limit Amount") shall be payable after the Closing if, and only if, the Surviving Corporation attains the Performance Goal (as defined below). In any calendar year during the ten year period following the Closing (the "Ten Year Term") that the Surviving Corporation attains Annual Net Revenues of more than $7,500,000 (the "Performance Goal"), the Stockholders shall be entitled to Additional Consideration shall become payable and/or issuable in an aggregate amount equal to each Selling Securityholder within 10 Business Days 10% of the Contingent Annual Net Revenues in excess of $7,500,000; provided, that the aggregate amount of Additional Consideration Date in accordance with paid under this Section 1.5(c3.1(b) shall not exceed the Limit Amount during or after the Ten Year Term. Each Stockholder shall be entitled to receive his Proportionate Share of any Additional Consideration payable hereunder. On or before March 31st of each year during the ten year period following the Closing (and subject to Section 1.5(a)unless the Limit Amount of Additional Consideration has been previously paid), subject CryoLife shall send to and in accordance with Section 1.6, including any reduction for an amount of cash up to such Selling Securityholder’s Pro Rata Share of the Holdback Amount withheld pursuant to Section 1.6(b), with each Selling Securityholder receiving an amount of cash and/or stock equal to (a) the percentage set forth in the Spreadsheet opposite such Selling Securityholder’s name under the heading “Contingent Consideration Percentage” multiplied by (b) the Contingent Consideration. The “Contingent Consideration Date” shall mean the earlier of Stockholders (i) a report of the date that is 30 months following the Closing Date and amount of Annual Net Revenues, (ii) a report of the date upon which $50 million amount of Additional Consideration, if any, payable with respect to the previous calendar year (or portion thereof), (iii) a copy of the audited financial statements of CryoLife as included in gross proceeds (net of transaction fees and expenses, including any broker fees, the “Contingent Threshold Amount”) is received by Purchaser from investors pursuant to bona fide equity financings in exchange CryoLife's Annual Report on Form 10-K for the issuance previous year, as prepared by CryoLife's certified public accountants, and (iv) if applicable, a check for the amount of Purchaser Series B StockAdditional Consideration payable to such Stockholder. If CryoLife shall have the Contingent Threshold Amount (Aoption, at any time, to terminate its obligations under this Section 3.1(b) is met prior by paying to the Contingent Consideration Date, then the Contingent Consideration shall be Stockholders an amount payable in cash equal to $50 million, or (B) is not met prior to the Contingent Consideration Date, then the Contingent Consideration shall be (I) an amount payable in cash equal to the gross proceeds (net then current present value of transaction fees and expenses, including any broker fees) received by Purchaser from investors pursuant to bona fide equity financings during such 30-month period in exchange for the issuance of Purchaser Series B Stock an amount (the “Actual Financing Proceeds”), plus (II"Remainder Amount") a number determined by subtracting from the Limit Amount the aggregate of shares all amounts of Purchaser Series B Stock equal to (x) two multiplied by (y) (i) (1) the Contingent Threshold Amount minus (2) the Actual Financing Proceeds, divided by (ii) the Purchaser Series B Stock Price (such amount of cash Additional Consideration previously paid and/or shares issued, the “Contingent Consideration”). Notwithstanding anything to the contrary in the foregoing, to the extent any such Selling Securityholder is not able to provide evidence satisfactory to Purchaser that such Selling Securityholder is an accredited investor as defined in Rule 501(a) of Regulation D under the Securities Act (or otherwise provide evidence satisfactory to Purchaser that another applicable exemption under the Securities Act is available to rely upon), then Purchaser reserves the right, in its sole discretion, to replace the share issuance to such Selling Securityholder pursuant to clause (II) Stockholders. Calculation of the prior sentence with a payment in cash equal to (x) the Purchaser Series B Stock Price multiplied by (y) the number of shares that otherwise would have been issuable to such Selling Securityholder pursuant to clause (II) current present value of the prior sentence (rounded down to Remainder Amount shall be based on the nearest cent)assumption that the Remainder Amount would be paid in equal annual installments ending on the sixth anniversary of Closing and an assumed interest rate of 8% per annum.