Common use of Performance Calculation Clause in Contracts

Performance Calculation. (a) As soon as practical after December 31, 2003, QIAGEN will determine (i) the amount of Xeragon Revenues and (ii) the Xeragon Expense Percentage, each to be determined in accordance with generally accepted accounting principles, and shall deliver written notice of such determination to ▇▇▇▇▇▇▇ ▇▇▇▇▇ as representative of the Company Shareholders (the "Dispute Representative") at his address as set forth on the signature page hereto (or such other address as he shall have furnished in writing to QIAGEN prior to such time). (b) If the Dispute Representative objects to QIAGEN's determination of the Xeragon Revenues or Xeragon Expense Percentage, he shall deliver to QIAGEN written notice of such objection within 30 calendar days after his receipt of notice thereof (a "Dispute Notice") setting forth, with specificity, the nature of his dispute and his alternative calculation of the Xeragon Revenues and the Xeragon Expense Percentage, as applicable. If the Dispute Representative does not timely deliver to QIAGEN a Dispute Notice the Company Shareholders shall be deemed to have agreed to QIAGEN's determination of the Xeragon Revenues and the Xeragon Expense Percentage. If the Dispute Representative does timely deliver to QIAGEN a Dispute Notice, QIAGEN and the Dispute Representative shall meet within 15 calendar days after QIAGEN's receipt of the Dispute Notice to attempt to resolve any dispute referenced therein. Any dispute not able to be resolved within such 15 calendar day period shall be submitted to QIAGEN's independent accounting representative, or another firm chosen by QIAGEN ("QIAGEN's Accountant"), and another firm chosen by the Dispute Representative ("Shareholders' Accountant" and together with QIAGEN's Accountant, (the "Accountants"), which shall endeavor in good faith to resolve any disputed item(s). If the Accountants are unable to resolve the disputed item(s) within thirty (30) calendar days after submission to them, the Accountants shall together, within ten (10) Business Days thereafter, appoint a representative from a "big five" accounting firm (other than either of the Accountants) to arbitrate the dispute (the "Arbitrator"). QIAGEN and the Dispute Representative shall, within the next twenty (20) calendar days thereafter, present their positions with respect to the disputed item(s) to the Arbitrator together with such other materials as the Arbitrator deems appropriate. The Arbitrator shall, after the submission of the evidentiary materials, submit its written decision on each disputed item to QIAGEN and the Dispute Representative. Any determination by the Arbitrator with respect to any disputed item shall be final, binding and conclusive on each party to this Agreement. QIAGEN and the Dispute Representative agree that the cost of the Arbitrator shall be borne one-half (1/2) by QIAGEN and one-half (1/2) by the Dispute Representative. QIAGEN shall be responsible for the cost of QIAGEN's Accountant and the Dispute Representative shall be responsible for the cost of the Shareholders' Accountant. (c) Upon final determination of the Xeragon Revenues and the Expense Percentage (whether upon agreement of the parties, by the Accountants or by the Arbitrator), QIAGEN shall, as soon as practical after such final determination but subject to provisions of Section 1.6(a)(iii), issue and deliver to the Company Shareholders either (A) the Performance Shares and cash in lieu of any fractional Performance Shares in accordance with Section 1.6(a) hereof or (B) the Performance Cash (rounded to the nearest $0.01 for each Company Stockholder).