Common use of Time of Determination Clause in Contracts

Time of Determination. (a) The EBITDAMF of the Acquired Business for each Earn-Out Year shall be determined promptly after the close of each fiscal year of Buyer in which the Earn-Out Year ended by an audit conducted by Buyer’s Accountants. Copies of the Buyer’s Accountants’ report setting forth their computation of the EBITDAMF of the Acquired Business shall be submitted in writing to EIS and Buyer within sixty (60) days of the close of the applicable fiscal year end and, unless either EIS or Buyer notifies the other within thirty (30) days after receipt of such report that it objects to the computation of EBITDAMF set forth therein, the report shall be binding and conclusive for the purposes of this Agreement. EIS shall have access to the books and records of the Acquired Business and to Buyer’s Accountants’ workpapers during regular business hours and upon prior notice to verify the computation of EBITDAMF made by Buyer’s Accountants. (b) If either EIS or Buyer notifies the other in writing within thirty (30) days after receipt of Buyer’s Accountants’ report that it objects to the computation of EBITDAMF set forth therein, the amount of EBITDAMF for the Earn-Out Year to which such report relates shall be determined by negotiation between EIS and Buyer. If EIS and Buyer are unable to reach agreement within thirty (30) Business Days after such notification, the determination of the amount of EBITDAMF for the Earn-Out Year in question shall be submitted to a mutually agreeable third-party firm of independent certified public accountants (“Special Accountants”) for determination, whose determination shall be binding and conclusive on the parties. If the Special Accountants determine that the EBITDAMF has been understated by two percent (2%) or more, then Buyer shall pay the Special Accountants’ fees, costs and expenses. If EBITDAMF has not been understated or has been understated by less than two percent (2%), then EIS shall pay the Special Accountants’ fees, costs and expenses.

Time of Determination. (ai) The EBITDAMF pre-tax income of the Acquired Business for each Earn-Out Year Company shall be determined promptly after the close of each of the 2001 and 2002 fiscal year of Buyer in which the Earn-Out Year ended years by an audit conducted by Buyer’s Purchaser's Accountants. Copies of the Buyer’s Accountants’ report their reports setting forth their computation of the EBITDAMF pre-tax income of the Acquired Business Company shall be submitted in writing to EIS the Sellers and Buyer within sixty (60) days of the close of the applicable fiscal year end Purchaser and, unless either EIS Sellers or Buyer the Purchaser notifies the other within thirty (30) 20 business days after receipt of such the report that it its objects to the computation of EBITDAMF pre-tax income set forth therein, the report reports shall be binding and conclusive for the purposes of this Agreement. EIS The Sellers shall have access to the books and records of the Acquired Business Company and to Buyer’s Purchaser's Accountants’ ' workpapers during regular business hours and upon prior notice to verify the computation of EBITDAMF pre-tax income made by Buyer’s Purchaser's Accountants. (bii) If either EIS a Seller or Buyer the Purchaser notifies the other in writing within thirty (30) 20 business days after receipt of Buyer’s Purchaser's Accountants’ ' report that it objects to the computation of EBITDAMF the pre-tax income set forth therein, the amount of EBITDAMF pre-tax income for the Earn-Out Year to fiscal year for which such report relates shall be determined by negotiation between EIS the Sellers and Buyerthe Purchaser. If EIS the Sellers and Buyer the Purchaser are unable to reach agreement within thirty (30) Business Days 20 business days after such notification, the determination of the amount of EBITDAMF pre-tax income for the Earn-Out Year period in question shall be submitted to a mutually agreeable third-third party firm of independent certified public accountants (“"Special Accountants”") for determination, whose determination shall be binding and conclusive on the parties. If the Special Accountants determine that the EBITDAMF pre-tax income has been understated by two percent (2%) 5% or more, then Buyer the Purchaser shall pay the Special Accountants’ ' fees, costs and expenses. If EBITDAMF pre-tax income has not been understated or has been understated by less than two percent (25%), then EIS the Sellers shall pay the Special Accountants’ ' fees, costs and expenses.

Time of Determination. (a) The EBITDAMF of the Acquired Business for each Earn-Out Year Revenues shall be determined promptly after the close of each fiscal year of Buyer December 31, 2002, but in which the Earnno event later than forty-Out Year ended five (45) days thereafter, by an audit conducted by Buyer’s AccountantsParent. Copies of the Buyer’s Accountants’ report setting forth their Parent's computation of the EBITDAMF Revenues of the Acquired Business shall be submitted in writing to EIS and Buyer within sixty Stockholder Representative (60as defined in the Escrow Agreement) days of the close of the applicable fiscal year end and, unless either EIS or Buyer Stockholder Representative notifies the other Parent in writing within thirty (30) days after receipt of such the report (the "OBJECTION PERIOD") that it objects to the computation of EBITDAMF the Revenues set forth therein, the report shall be binding and conclusive on all parties to this Agreement and all Company Stockholders for the purposes of this Merger Agreement. EIS Stockholder Representative or its authorized representative shall have access to the books and records of the Acquired Business Company and to Buyer’s Accountants’ workpapers the Surviving Corporation during regular business hours and upon prior notice to verify the computation of EBITDAMF Revenues made by Buyer’s Accountants. (b) Parent. If either EIS or Buyer Stockholder Representative notifies the other Parent in writing within thirty (30) days after receipt of Buyer’s Accountants’ report the Objection Period that it objects to the computation of EBITDAMF Revenues set forth therein, Parent and Stockholder Representative shall meet to attempt to resolve the amount of EBITDAMF for the Earn-Out Year to which such report relates shall be determined by negotiation between EIS and Buyerobjection. If EIS Parent and Buyer Stockholder Representative are unable to reach agreement within thirty (30) Business Days after such notification, KPMG or such other independent accounting firm agreed to by Parent and the determination of Stockholder Representative (but excluding Deloitte & Touche L.L.P. and Ernst & Young L.L.P.) ("SPECIAL ACCOUNTANTS") shall perform agreed-upon procedures and issue a report on such procedures (the amount of EBITDAMF for the Earn"AGREED-Out Year in question shall be submitted to a mutually agreeable third-party firm of independent certified public accountants (“Special Accountants”UPON PROCEDURES REPORT") for determination, whose determination determining whether the Revenue Hurdle has been met. The Agreed-Upon Procedures Report shall be binding and conclusive on Parent and Stockholder Representative. Stockholder Representative or its authorized representative shall have access to the partiesworkpapers relating to the Agreed-Upon Procedures Report. If the Special Accountants determine Agreed-Upon Procedures Report indicates that the EBITDAMF Revenue Hurdle has been understated by two percent (2%) or moremet, then Buyer Parent shall pay the Special Accountants’ ' fees, costs and expenses. If EBITDAMF the Agreed-Upon Procedures Report indicates that the Revenue Hurdle has not been understated or has been understated by less than two percent (2%)met, then EIS shall pay the Special Accountants’ ' fees, costs and expenses.expenses shall be paid to Parent from the Escrow Account by the Escrow Agent. If Parent is entitled to the return of the $5 million of Merger Consideration pursuant to this Section 3.3, such amount shall be delivered to Parent within three (3) Business Days of the earlier of (i) the expiration of the Objection Period (assuming no objection was brought within the Objection Period) or the date prior to the expiration of the Objection Period that Stockholder Representative notifies the Escrow Agent that it does not object to the determination contained in Parent's report, (ii) Parent and Stockholder Representative's delivery of a joint written notice to the Escrow Agent that the Revenue Hurdle was not met, or (iii) delivery to the Escrow Agent of the Agreed Upon Procedures Report that indicates the Revenue Hurdle was not met. The parties agree that notwithstanding anything to the contrary contained in this Merger Agreement or the Escrow Agreement, (i) the return of the $5 Million of Merger Consideration pursuant to this Section 3.3 shall be satisfied solely from the funds held in the Escrow Account and (ii) if the Escrow Account would otherwise be distributed pursuant to the terms of the Escrow Agreement and assuming that there is still sufficient Merger Consideration remaining in the Escrow Account, Escrow Agent shall continue to hold at least $5 million of the Merger Consideration (or such lesser amount then remaining in the Escrow Account) until there has been a final determination pursuant to this Section 3.3 as to whether Parent is entitled to the

Time of Determination. (a) The EBITDAMF Pre-Tax Income of the Acquired Business for each Earn-Out Year BPI shall be determined promptly after filing of NFLI's Annual Report on Form 10-K for the close of each fiscal year of Buyer in which the Earn-Out Year ended One, Year Two and Year Three by an audit conducted by Buyer’s NFLI after consultation with NFLI's Accountants. Copies of the Buyer’s Accountants’ report reports setting forth their the computation of the EBITDAMF Pre-Tax Income of the Acquired Business BPI shall be submitted in writing to EIS and Buyer within sixty (60) days of the close of the applicable fiscal year end Reddy and, unless either EIS or Buyer Reddy notifies the other NFLI within thirty (30) 15 business days after receipt of such the report that it he objects to the computation of EBITDAMF Pre-Tax Income set forth therein, the report reports shall be binding and conclusive for the purposes of this Agreement. EIS Reddy shall have access to the books and records of the Acquired Business BPI and to Buyer’s Accountants’ NFLI's Accountant's workpapers (to the extent that NFLI can facilitate such access) during regular business hours and upon prior notice to verify the computation of EBITDAMF Pre-Tax Income made by Buyer’s AccountantsNFLI. (b) If either EIS or Buyer Reddy notifies the other NFLI in writing within thirty (30) 15 business days after receipt of Buyer’s Accountants’ NFLI's report that it he objects to the computation of EBITDAMF Pre-Tax Income set forth therein, the amount of EBITDAMF Pre-Tax Income for the Earn-Out Year to (or other period) for which such report relates shall be determined by negotiation between EIS Reddy and BuyerNFLI. If EIS Reddy and Buyer NFLI are unable to reach agreement within thirty (30) Business Days 20 business days after such notification, the determination of the amount of EBITDAMF Pre-Tax Income for the Earn-Out Year period in question shall be submitted to a mutually agreeable third-third party firm of independent certified public accountants (“"Special Accountants”") for determination, whose determination shall be binding and conclusive on the parties. If the Special Accountants determine that the EBITDAMF Pre-Tax Income has been understated by two percent (2%) 10% or more, then Buyer NFLI shall pay the Special Accountants’ ' fees, costs and expenses. If EBITDAMF Pre-Tax Income has not been understated or has been understated by less than two percent (210%), then EIS Reddy shall pay the Special Accountants’ ' fees, costs and expenses.

Time of Determination. (a) The EBITDAMF Pre-Tax Income of the Acquired Business for each Earn-Out Year Ash shall be determined promptly as soon as reasonably practicable after filing of NFLI's Annual Report on Form 10-K for the close of each fiscal year of Buyer in which the Earn-Out Year ended One, Year Two and Year Three by an audit conducted by Buyer’s AccountantsNFLI. Copies of the Buyer’s Accountants’ report reports setting forth their the computation of the EBITDAMF Pre-Tax Income of the Acquired Business Ash shall be submitted in writing to EIS and Buyer within sixty (60) days of the close of the applicable fiscal year end The Shareholders and, unless either EIS or Buyer notifies The Shareholders who own at least a majority of the other NFLI Preferred Stock issued to the Shareholders at the Closing notify NFLI within thirty (30) 15 business days after receipt of such the report that it objects they object to the computation of EBITDAMF Pre-Tax Income set forth therein, the report reports shall be binding and conclusive for the purposes of this Agreement. EIS The Shareholders shall have access to the books and records of the Acquired Business Ash and to Buyer’s Accountants’ NFLI's Accountant's workpapers (to the extent that NFLI can facilitate such access) during regular business hours and upon prior notice to verify the computation of EBITDAMF Pre-Tax Income made by Buyer’s AccountantsNFLI. (b) If either EIS or Buyer notifies The Shareholders who own at least a majority of the other NFLI Preferred Stock issued to the Shareholders at the Closing notify NFLI in writing within thirty (30) 15 business days after receipt of Buyer’s Accountants’ NFLI's report that it objects they object to the computation of EBITDAMF Pre-Tax Income set forth therein, the amount of EBITDAMF Pre-Tax Income for the Earn-Out Year to (or other period) for which such report relates shall be determined by negotiation between EIS The Shareholders who have provided notice of objection to NFLI and BuyerNFLI. If EIS and Buyer these persons are unable to reach agreement within thirty (30) Business Days 20 business days after such notification, the determination of the amount of EBITDAMF Pre-Tax Income for the Earn-Out Year period in question shall be submitted to a mutually agreeable third-third party firm of independent certified public accountants (“"Special Accountants”") for determination, whose determination shall be binding and conclusive on the parties. If the Special Accountants determine that the EBITDAMF Pre-Tax Income has been understated by two percent (2%) 10% or more, then Buyer NFLI shall pay the Special Accountants’ ' fees, costs and expenses. If EBITDAMF Pre-Tax Income has not been understated or has been understated by less than two percent (210%), then EIS The Shareholders shall pay the Special Accountants’ ' fees, costs and expenses.

Time of Determination. (a) The EBITDAMF Net Income Before Taxes of the Acquired Business for each Earn-Out Year Deer Valley shall be determined by the Accountants promptly after completion of the close of each fiscal year of Buyer in which the Earn-Out Year ended by an audit conducted by Buyer’s AccountantsAudit. Copies of the Buyer’s Accountants’ its report setting forth their its computation of the EBITDAMF Net Income Before Taxes of the Acquired Business Deer Valley shall be submitted in writing to EIS the Sellers and Buyer within sixty (60) days of the close of the applicable fiscal year end Parent Company and, unless either EIS Parent Company or Buyer notifies a Majority of the other Sellers provides written notice within thirty forty-five (3045) days after receipt of such the report that it objects to the computation of EBITDAMF the Net Income Before Taxes set forth therein, the report shall be binding and conclusive for the purposes of this Agreement. EIS Sellers shall have access to the books and records of the Acquired Business Deer Valley and to Buyer’s Accountants’ ' workpapers during regular business hours and upon prior notice to verify the computation of EBITDAMF the Net Income Before Taxes made by Buyer’s the Accountants. (b) If either EIS Parent Company or Buyer notifies a Majority of the other Sellers provides notice in writing within thirty forty-five (3045) days after receipt of Buyer’s Accountants’ ' report that it objects to the computation of EBITDAMF the Net Income Before Taxes set forth therein, the amount of EBITDAMF the Net Income Before Taxes for the Earn-Out Year fiscal year to which such report relates shall be determined by negotiation between EIS Sellers and BuyerParent Company. If EIS a Majority of the Sellers and Buyer Parent Company are unable to reach agreement within thirty forty-five (3045) Business Days days after such notification, the determination of the amount of EBITDAMF the Net Income Before Taxes for the Earn-Out Year period in question shall be submitted to a mutually agreeable third-party firm of independent certified public accountants (“"Special Accountants”") for -------------------- determination, whose determination shall be binding and conclusive on the parties. If the Special Accountants determine that the EBITDAMF Net Income Before Taxes has been understated by two three percent (23%) percent or more, then the Buyer shall pay the Special Accountants’ ' fees, costs and expenses. If EBITDAMF Net Income Before Taxes has not been understated or has been understated by less than two three percent (23%)) percent, then EIS shall pay the Special Accountants’ ' fees, costs and expensesexpenses shall be deducted as expenses from the Special Accountants' determination of Net Income Before Taxes for that particular fiscal year.