Common use of Time of Determination Clause in Contracts

Time of Determination. (i) For each quarter during the Term, the Company shall prepare or cause to be prepared and delivered to Orthodyne, within 10 days after completion by the Company’s independent accountants of their audit or review, as applicable, of the Company’s financial statements, but in no event more than 10 days following the date the Company files its Quarterly Report on Form 10-Q or its Annual Report on Form 10-K, as applicable, a written statement setting forth the computation of Gross Profit of the Company for such quarter (the “Gross Profit Statement”). During the 10 Business Days immediately following Orthodyne’s receipt of the Gross Profit Statement and during the period in which any dispute with respect thereto is pending and unresolved, the Company shall provide Orthodyne reasonable access during normal business hours to such books and records of the Company as Orthodyne may reasonably request in order to review and verify the Company’s calculation of Gross Profit as set forth in the Gross Profit Statement. The Gross Profit set forth in such Gross Profit Statement shall become final and binding upon the Parties 10 Business Days following Orthodyne’s receipt thereof unless Orthodyne gives written notice of their disagreement to the Company prior to such date, setting forth in reasonable detail the basis for such disagreement. (ii) If Orthodyne shall have any objections to the Company’s calculation of Gross Profit as set forth on the Gross Profit Statement, the Company and Orthodyne shall attempt in good faith to reach an agreement as to the matter in dispute. If the Company and Orthodyne fail to resolve such dispute within 20 Business Days after the Company’s receipt of such objection (or such longer period as mutually agreed upon by the Company and Orthodyne), then any such dispute may thereafter be referred by either Party for resolution to the Nonpartisan Accountants. The Company and Orthodyne shall take, or cause to be taken, all actions and do, or cause to be done, all things necessary to cooperate with the Independent Accounting Firm in its resolution of the dispute. The determination of the Independent Accounting Firm shall be made as promptly as practicable and shall be final, binding and conclusive on all parties hereto. The fees and expenses of the Independent Accounting Firm incurred in resolving the dispute shall be borne by Orthodyne, unless the final determination of Gross Profit, after resolution of such dispute, exceeds the Company’s calculation of Gross Profit set forth on the Gross Profit Statement by more than 5%, in which case such fees and expenses shall be borne by the Company.

Time of Determination. (i) For each quarter during the Term, the The Company shall prepare or cause to be prepared and delivered to OrthodyneSeller, within 10 45 days after completion by the Company’s independent accountants end of their audit or review, as applicable, of the Company’s financial statements, but in no event more than 10 days following the date the Company files its Quarterly Report on Form 10-Q or its Annual Report on Form 10-K, as applicableeach Earn Out Period, a written statement setting forth the computation of Gross Profit of Net Contribution Amount and the Company Earn Out Ratio for the applicable Earn Out Period in sufficient detail to permit Seller to confirm that such quarter calculations have been made in accordance with this Agreement (the “Gross Profit Earn Out Statement”). During Seller may provide written notice of objection to the 10 Business Days immediately following OrthodyneCompany’s determination of Net Contribution Amount and\or the Earn Out Ratio within 30 days after receipt of the Gross Profit Earn Out Statement by Seller, which notice shall state in reasonable detail the specific reasons for its objection. If Seller does not provide timely notice of objection as provided above, then Net Contribution Amount and during the period in which any dispute with respect thereto is pending and unresolved, Earn Out Ratio for the applicable Earn Out Period calculated by the Company shall provide Orthodyne reasonable access during normal business hours to such books and records of the Company as Orthodyne may reasonably request in order to review and verify the Company’s calculation of Gross Profit as set forth in the Gross Profit Statement. The Gross Profit set forth in such Gross Profit Earn Out Statement shall become final be binding and binding conclusive on the parties. During such 30 day period and during any period in which the calculation of Net Contribution Amount and\or the Earn Out Ratio for the applicable Earn Out Period and payment of the Earn Out Amount is in dispute between Seller and the Company, Seller, or its agents, upon the Parties 10 Business Days following Orthodyne’s receipt thereof unless Orthodyne gives reasonable written notice of their disagreement to the Company, shall have reasonable access during regular business hours, to inspect and audit all records of the Business used by the Company prior to such date, setting forth in reasonable detail calculating Net Contribution Amount and the basis Earn Out Ratio for such disagreementthe applicable Earn Out Period. (ii) If Orthodyne shall have any objections Seller provides the Company with notice of objection pursuant to (i) above within 30 days after receipt of the Company’s calculation of Gross Profit as set forth on the Gross Profit StatementEarn Out Statement by Seller, the Company and Orthodyne Seller shall attempt in good faith to reach an agreement as to the matter issues in dispute. If the Company and Orthodyne parties fail to resolve all such dispute disagreements within 20 15 Business Days after the Company’s receipt of such the notice of objection (or such longer period as mutually agreed upon by the Company and Orthodyneparties), then any such issues remaining in dispute may thereafter be referred submitted by either Party for resolution Seller or the Company to a nationally recognized independent accounting firm mutually agreed upon by the Nonpartisan Accountantsparties (the “Dispute Auditors”). The Company and Orthodyne Seller shall take, or cause to be taken, all actions and do, or cause to be done, all things necessary to cooperate with the Independent Accounting Firm Dispute Auditors in its resolution of the issues remaining in dispute, including furnishing to the Dispute Auditors such work papers and other documents and information relating to the disputed issues as the Dispute Auditors may reasonably request. The determination of Net Contribution Amount and the Independent Accounting Firm Earn Out Ratio for the applicable Earn Out Period by the Dispute Auditors shall be made as promptly as practicable set forth in a notice to be delivered to Seller and the Company within 45 days of the submission to the Dispute Auditors of the issues remaining in dispute, and such determination shall be final, binding and conclusive on all the parties heretoas to the amount of Net Contribution Amount and the Earn Out Ratio for the applicable Earn Out Period. The fees and expenses of the Independent Accounting Firm Dispute Auditors incurred in resolving the dispute for such determination shall be borne by Orthodyne, unless equitably apportioned based upon the final determination of Gross Profit, after resolution of such dispute, exceeds extent to which Seller or the Company’s calculation of Gross Profit set forth on the Gross Profit Statement by more than 5%, in which case such fees and expenses shall be borne Company is determined by the CompanyDispute Auditors to be the prevailing party in such determination.

Time of Determination. (i) For each quarter during the Term, the Company shall prepare or cause to be prepared and delivered to OrthodyneBeach Labs, within 10 days after completion by the Company’s independent accountants of their audit or review, as applicable, of the Company’s financial statements, but in no event more than 10 days following the date the Company files its Quarterly Report on Form 10-Q or its Annual Report on Form 10-K, as applicable, a written statement setting forth the computation of Gross Profit Revenue of the Company attributable to cDistro for such quarter (the “Gross Profit Revenue Statement”). During the 10 Business Days immediately following OrthodyneBeach Labs’s receipt of the Gross Profit Revenue Statement and during the period in which any dispute with respect thereto is pending and unresolved, the Company shall provide Orthodyne Beach Labs reasonable access during normal business hours to such books and records of the Company as Orthodyne Beach Labs may reasonably request in order to review and verify the Company’s calculation of Gross Profit Revenue as set forth in the Gross Profit Revenue Statement. The Gross Profit Revenue set forth in such Gross Profit Revenue Statement shall become final and binding upon the Parties 10 Business Days following OrthodyneBeach Labs’s receipt thereof unless Orthodyne Beach Labs gives written notice of their disagreement to the Company prior to such date, setting forth in reasonable detail the basis for such disagreement. (ii) If Orthodyne Beach Labs shall have any objections to the Company’s calculation of Gross Profit Revenue as set forth on the Gross Profit Revenue Statement, the Company and Orthodyne Beach Labs shall attempt in good faith to reach an agreement as to the matter in dispute. If the Company and Orthodyne Beach Labs fail to resolve such dispute within 20 Business Days after the Company’s receipt of such objection (or such longer period as mutually agreed upon by the Company and OrthodyneBeach Labs), then any such dispute may thereafter be referred by either Party for resolution to the Nonpartisan Accountants. The Company and Orthodyne Beach Labs shall take, or cause to be taken, all actions and do, or cause to be done, all things necessary to cooperate with the Independent Accounting Firm in its resolution of the dispute. The determination of the Independent Accounting Firm shall be made as promptly as practicable and shall be final, binding and conclusive on all parties hereto. The fees and expenses of the Independent Accounting Firm incurred in resolving the dispute shall be borne by OrthodyneBeach Labs, unless the final determination of Gross ProfitRevenue, after resolution of such dispute, exceeds the Company’s calculation of Gross Profit Revenue set forth on the Gross Profit Revenue Statement by more than 5%, in which case such fees and expenses shall be borne by the Company.

Time of Determination. (i) For each quarter during the Term, the The Company shall prepare or cause to be prepared and delivered to OrthodyneSeller, within 10 90 days after completion by the Company’s independent accountants end of their audit or review, as applicable, each of the Company’s financial statements, but in no event more than 10 days following First Earn Out Period and the date the Company files its Quarterly Report on Form 10-Q or its Annual Report on Form 10-K, as applicableSecond Earn Out Period, a written statement setting forth the computation of Gross Profit of Revenue (including, with respect to the Company Second Earn Out Period, the Cumulative Gross Revenue) for the applicable Earn Out Period in sufficient detail to permit Seller to confirm that such quarter calculations have been made in accordance with this Agreement (the “Gross Profit Earn Out Statement”). During Seller may provide written notice of objection to the 10 Business Days immediately following OrthodyneCompany’s determination of Gross Revenue and/or Cumulative Gross Revenue within 30 days after receipt of the Earn Out Statement by Seller, which notice shall state in reasonable detail the specific reasons for its objection. If Seller does not provide timely notice of objection as provided above, then Gross Profit Statement and during Revenue and/or Cumulative Gross Revenue for the period in which any dispute with respect thereto is pending and unresolved, applicable Earn Out Period calculated by the Company shall provide Orthodyne reasonable access during normal business hours to such books and records of the Company as Orthodyne may reasonably request in order to review and verify the Company’s calculation of Gross Profit as set forth in the Gross Profit Statement. The Gross Profit set forth in such Gross Profit Earn Out Statement shall become final be binding and binding conclusive on the parties. During such 30 day period and during any period in which the calculation of Gross Revenue and/or Cumulative Gross Revenue for the applicable Earn Out Period and payment of the First Earn Out Amount, the Second Earn Out Amount and/or the Additional Earn Out Amount is in dispute between Seller and the Company, Seller, or its agents, upon the Parties 10 Business Days following Orthodyne’s receipt thereof unless Orthodyne gives reasonable written notice of their disagreement to the Company, shall have reasonable access during regular business hours, to inspect and audit all records of the Business used by the Company prior to such date, setting forth in reasonable detail calculating Gross Revenue and/or Cumulative Gross Revenue for the basis for such disagreementapplicable Earn Out Period. (ii) If Orthodyne shall have any objections Seller provides the Company with notice of objection pursuant to (i) above within 30 days after receipt of the Company’s calculation of Gross Profit as set forth on the Gross Profit StatementEarn Out Statement by Seller, the Company and Orthodyne Seller shall attempt in good faith to reach an agreement as to the matter issues in dispute. If the Company and Orthodyne parties fail to resolve all such dispute disagreements within 20 15 Business Days after the Company’s receipt of such the notice of objection (or such longer period as mutually agreed upon by the Company and Orthodyneparties), then any such issues remaining in dispute may thereafter be referred submitted by either Party for resolution Seller or the Company to a recognized independent accounting firm mutually agreed upon by the Nonpartisan Accountantsparties (the “Dispute Auditors”). The Company and Orthodyne Seller shall take, or cause to be taken, all actions and do, or cause to be done, all things necessary to cooperate with the Independent Accounting Firm Dispute Auditors in its resolution of the issues remaining in dispute, including furnishing to the Dispute Auditors such work papers and other documents and information relating to the disputed issues as the Dispute Auditors may reasonably request. The determination of Gross Revenue and/or Cumulative Gross Revenue for the Independent Accounting Firm applicable Earn Out Period by the Dispute Auditors shall be made as promptly as practicable set forth in a notice to be delivered to Seller and the Company within 45 days of the submission to the Dispute Auditors of the issues remaining in dispute, and such determination shall be final, binding and conclusive on all the parties heretoas to the amount of Gross Revenue and/or Cumulative Gross Revenue for the applicable Earn Out Period. The fees and expenses of the Independent Accounting Firm Dispute Auditors incurred in resolving the dispute for such determination shall be borne by Orthodyne, unless equitably apportioned based upon the final determination of Gross Profit, after resolution of such dispute, exceeds extent to which Seller or the Company’s calculation of Gross Profit set forth on the Gross Profit Statement by more than 5%, in which case such fees and expenses shall be borne Company is determined by the CompanyDispute Auditors to be the prevailing party in such determination.