Common use of Consent Requirement Clause in Contracts

Consent Requirement. If, after the Closing and prior to the Contingent Payment Termination Date: (a) Buyer (or a Subsidiary or Affiliate thereof) shall cease to own a majority of the outstanding voting securities of the Company (or of any other Subsidiary of Buyer that is engaged in developing, manufacturing, marketing or selling the LipoSonix Product (a “Successor Subsidiary”)); or (b) Buyer or any of its Subsidiaries, including the Company, shall, in one or a series of transactions, sell, license or transfer to any Person all or substantially all of the Intellectual Property used in developing, manufacturing, marketing or selling the LipoSonix Product to any Person; (i) Buyer, prior to entering into such transaction or transactions, shall obtain Seller’s written consent, which shall not be unreasonably withheld, and (ii) any Person acquiring a majority of the outstanding voting securities of the Company or a Successor Subsidiary after the Closing in a transaction described in Section 2.8(a) or acquiring all or substantially all of the Intellectual Property used in developing, marketing or selling the LipoSonix Product in a transaction described in Section 2.8(b), as the case may be (the “Acquiring Person”), shall explicitly assume in writing the obligations of Buyer to make the Seller Contingent Payments as set forth in this Agreement and shall agree in writing to be bound by and to comply with the terms and conditions set forth in this Agreement and the terms and conditions of Sections 2.6 and 2.7 of this Agreement (including but not limited to the requirements set forth in Section 2.6(g)). For purposes of this Section 2.8, Seller shall be deemed to have unreasonably withheld its consent if with respect to the transaction or transactions described in this Section 2.8, the Acquiring Person expressly assumes the obligations as set forth in clause (ii) of this Section 2.8 and if such Acquiring Person is a Qualified Acquiring Person. A “Qualified Acquiring Person” means a Person (i) who (A) is directly engaged in any business that develops, manufactures, sells, markets or distributes pharmaceutical, medical device or any other healthcare products or devices, and (B) has earnings before interest, taxes, depreciation and amortization (or EBITDA) of no less than $10,000,000 in each of the two fiscal years immediately preceding the transaction or transactions described in this Section 2.8 or (ii) that is an Affiliate of a financial sponsor, private equity firm or similar organization, which Affiliate (together with the Company or Successor Subsidiary), (A) immediately after the closing of such acquisition, has a consolidated ratio of total debt to EBITDA (as such term is defined in the Credit Agreement) for the 12-month period ended the date of such transaction that is no greater than 4.0 to 1(4.0x), and (B) has, on a pro forma basis, earnings before interest, taxes, depreciation and amortization (or EBITDA) of no less than $10,000,000 in each of the two fiscal years immediately preceding the transaction or transactions described in this Section 2.8. Upon and following Seller’s written consent and the express assumption and agreement by the Person referred to in this Section 2.8, Buyer shall have no further obligation to make any further Seller Contingent Payments pursuant to this Agreement. For the avoidance of doubt, this Section 2.8 shall not apply to an acquisition of a majority of the outstanding voting securities of Buyer or a change of control of Buyer that does not involve a separate transfer of the assets or equity securities of the Company; it being understood that, following any such transaction, this Section 2.8 shall continue to apply to any future transactions described under clauses (a) or (b) above.