APPLICABLE MILESTONE PAYMENT FOR ANY MILESTONE THAT IS NOT ACHIEVED ON OR BEFORE
THE APPLICABLE MILESTONE EXPIRATION DATE.
AT ALL TIMES FOLLOWING THE
MANUFACTURING CLOSING DATE AND PRIOR TO PAYMENT BY PURCHASER TO SELLER OF THE
SIXTH MILESTONE PAYMENT PURSUANT TO SECTION 1.5(A)(VI) HEREOF, PURCHASER SHALL,
AS SOON AS REASONABLY PRACTICABLE FOLLOWING EACH DECEMBER 31 DURING SUCH PERIOD,
DELIVER TO SELLER PURCHASER'S CALCULATION OF THE CUMULATIVE NET SALES FOR THE
PERIOD COMMENCING ON THE DAY IMMEDIATELY FOLLOWING THE MANUFACTURING CLOSING
DATE AND UP TO AND INCLUDING EACH SUCH DECEMBER 31.
(II)
IF SELLER BELIEVES THAT IT IS ENTITLED TO PAYMENT OF ALL OR ANY
PORTION OF AN APPLICABLE MILESTONE PAYMENT HEREUNDER WHICH SELLER HAS NOT
RECEIVED WITHIN FIVE (5) BUSINESS DAYS FOLLOWING THE ACHIEVEMENT OF THE
MILESTONE FOR WHICH PAYMENT IS DUE, SELLER MAY, NOT LATER THAN TWELVE (12)
MONTHS FOLLOWING THE ACHIEVEMENT OF SUCH MILESTONE, DELIVER TO PURCHASER A
NOTICE SETTING FORTH SELLER'S DETERMINATION THAT ALL OR A PORTION OF SUCH
APPLICABLE MILESTONE PAYMENT IS DUE UNDER THIS AGREEMENT (THE "MILESTONE
ASSESSMENT NOTICE").
IF SELLER DOES NOT DELIVER TO PURCHASER A MILESTONE
ASSESSMENT NOTICE WITHIN SUCH TWELVE (12) MONTH PERIOD, THEN SELLER SHALL HAVE
BEEN DEEMED TO AGREE THAT THE MILESTONE HAS NOT BEEN MET AND NO PAYMENT WITH
RESPECT TO SUCH MILESTONE IS DUE TO SELLER HEREUNDER AND SELLER SHALL HAVE NO
FURTHER RIGHTS TO SUCH APPLICABLE MILESTONE PAYMENT OR ANY PORTION THEREOF;
PROVIDED, HOWEVER, THAT SELLER'S FAILURE TO DELIVER A MILESTONE ASSESSMENT
NOTICE WITHIN SUCH TWELVE (12) MONTH PERIOD WITH RESPECT TO THE SIXTH MILESTONE
PAYMENT SHALL NOT RELIEVE PURCHASER OF ITS OBLIGATIONS TO PAY THE SIXTH
MILESTONE PAYMENT (IF AND WHEN EARNED) UNLESS PURCHASER IS MATERIALLY PREJUDICED
BY SUCH DELAY.
(III)
IF PURCHASER SHALL OBJECT TO SELLER'S DETERMINATION THAT A
MILESTONE HAS BEEN ACHIEVED AS SET FORTH IN THE MILESTONE ASSESSMENT NOTICE,
THEN PURCHASER SHALL DELIVER A DISPUTE NOTICE (A "MILESTONE DISPUTE NOTICE") TO
SELLER WITHIN FIVE (5) BUSINESS DAYS FOLLOWING SELLER'S DELIVERY OF THE
MILESTONE ASSESSMENT NOTICE.
IF PURCHASER DELIVERS A MILESTONE DISPUTE NOTICE
TO SELLER IN CONNECTION WITH THE SIXTH MILESTONE PAYMENT UNDER
SECTION 1.5(A)(VI), UPON SELLER'S REASONABLE REQUEST, PURCHASER SHALL PROVIDE
SELLER WITH SUCH BOOKS OF ACCOUNT AND RECORDS AND WRITTEN EVIDENCE AS SELLER
SHALL REASONABLY REQUEST SHOWING PURCHASER'S CALCULATION OF THE NET SALES OF THE
BUSINESS AND, UPON SELLER'S REASONABLE REQUEST AND UPON TWO (2) BUSINESS DAYS
PRIOR WRITTEN NOTICE TO PURCHASER, SELLER OR ITS REPRESENTATIVE MAY INSPECT THE
GROSS RECEIPTS, CREDITS, SALES TAX, TAX REPORTS, COSTS AND ANY OTHER REPORTS,
RECORDS OR DOCUMENTS REASONABLY REQUESTED BY SELLER AND ASSOCIATED WITH THE
BUSINESS OR THE PRODUCT FOR THE SOLE PURPOSE OF REVIEWING, AND ONLY TO THE
EXTENT NECESSARY TO REVIEW, PURCHASER'S CALCULATION OF NET SALES.
A
REPRESENTATIVE OF PURCHASER, ON THE ONE HAND, AND A REPRESENTATIVE OF SELLER, ON
THE OTHER, SHALL ATTEMPT IN GOOD FAITH TO RESOLVE ANY SUCH OBJECTIONS WITHIN TEN
(10) BUSINESS DAYS OF THE RECEIPT BY SELLER OF THE MILESTONE DISPUTE NOTICE.
(IV)
IF PURCHASER AND SELLER SHALL