Instrument Express Program Clause Samples

Instrument Express Program. In the event that the Gross Profit Margin derived by Aesculap is less than thirty-eight percent (38%), or the Gross Profit Margin derived by SRI is less than twenty-eight percent (28%), for any calendar year throughout the Term, the party that has experienced the Gross Profit Margin shortfall shall have the right, upon written notice to the other party within sixty (60) days following the end of such calendar year (the "Completed Measurement Period"), to cause the other party to enter into good faith discussions and negotiations regarding a fair and equitable adjustment to Pricing/Procedure Guideline for the new or renewed Instrument Express Program (a "Percentage Adjustment") for the calendar year immediately following such Completed Measurement Period. No Percentage Adjustment shall be effective and binding upon the parties hereto unless the Percentage Adjustment has been agreed to in writing by both SRI and Aesculap; provided, however, if SRI and Aesculap are unable to agree upon a fair and equitable Percentage Adjustment within forty-five (45) days following the commencement of discussions and negotiations with respect thereto, at the written request of either party, the parties shall submit the matter to binding arbitration to determine a fair and equitable Percentage Adjustment, if any, and the resulting Gross Profit Margin that each party would derive after such Percentage Adjustment. The arbitration shall be conducted by a panel of three (3) arbitrators having sufficient industry experience and qualifications and reasonably satisfactory to both SRI and Aesculap. The arbitrators shall have the right to conduct such investigation of the respective books and records of each of Aesculap (on a non- consolidated basis, not including the financial information of any Affiliates of Aesculap) and SRI in connection with its determination of the Percentage Adjustment. The determination by the arbitrators shall be based upon such factors that the arbitrator deems relevant in connection therewith including, without limitation, (a) the parties intended for Aesculap to derive a Gross Profit Margin of not less than forty-five (45%) (on a non-consolidated basis) and SRI to derive a Gross Profit Margin of not less than thirty-five percent (35%) for the Instrument Express Products and Services, (b) the Gross Profit Margin of the parties prior to any request for a Percentage Adjustment hereunder, (c) the change, if any, in the market in the Territory for the Instrument...