definiens: means, as of the end of any calendar month duringthe Earn Out Period, for the 12 - month period preceding such date ( x ) theSurviving Corporation 's gross margin for such 12 - month period, calculated inaccordance with GAAP applied on a basis consistent with the practices of theCompany and its Subsidiaries prior to the date hereof, divided by ( y ) AggregateNet Sales for such 12 - month period ; provided however that, for purposes of thiscalculation, there shall be deducted from the costs of the Surviving Corporationin calculating its gross margins and Aggregate Net Sales for such 12 - monthperiod ( i ) the costs associated with and Net Sales of any Earn Out Product(defined by Earn Out Product Category ) that is substantially different infunction or form from, or is manufactured in a substantially different mannerthan, any prior Earn Out Product in such Earn Out Product Category until twelvemonths after commercial launch of such Earn Out Product in the United Statesfollowing the receipt of applicable regulatory approvals and ( ii ) any amountspayable pursuant to Section 7.02(e ) in respect of such 12 - month period