Determination of EBITDA. (a) The 2009 EBITDA, the 2010 EBITDA, the 2011 EBITDA and, if applicable, the 2012 EBITDA shall be determined on or before the thirtieth (30th) day following the receipt by Buyer, of the final audited consolidated financial statements of the Company, for Fiscal 2009, Fiscal 2010, Fiscal 2011 and Fiscal 2012, as applicable, and in any event no later than March 31 of 2010, 2011, 2012 or 2013, as applicable; provided that if the 2009 EBITDA, 2010 EBITDA, 2011 EBITDA or 2012 EBITDA is disputed pursuant to this Section 2.5, such determination shall occur on such later date as the 2009 EBITDA, 2010 EBITDA, 2011 EBITDA or 2012 EBITDA, as applicable, shall have been finally determined hereunder (the date described in this sentence, the “Determination Date”).
(b) No later than ten (10) business days following issuance of the audited financial statements of the Company for Fiscal 2009, Fiscal 2010, Fiscal 2011 and Fiscal 2012, as applicable, the Company shall deliver a copy thereof to the Buyer and the Sellers’ Representative, together with a certificate of the Chief Financial Officer of the Company, which certificate shall set forth the Company’s calculation of the 2009 EBITDA, 2010 EBITDA, 2011 EBITDA or 2012 EBITDA, as applicable. Time is of the essence with respect to the delivery of such certificate.
(c) If the Buyer or the Sellers’ Representative shall disagree with such determination of the 2009 EBITDA, 2010 EBITDA, 2011 EBITDA or 2012 EBITDA, as applicable, the disagreeing party shall notify the other party on or before the date which is thirty (30) days after the date on which the Company delivers to the Buyer and the Sellers’ Representative such statement of the Company’s 2009 EBITDA, 2010 EBITDA, 2011 EBITDA or 2012 EBITDA, as applicable. Buyer and the Sellers’ Representative shall attempt in good faith to resolve any such disagreements. If Buyer and the Sellers’ Representative are unable to resolve all such disagreements on or before the date which is fifteen (15) days after notification by the disagreeing party of any such disagreements, the Sellers’ Representative and Buyer shall retain a nationally or regionally recognized independent public accounting firm not engaged by either the Company, Buyer or Parent at such time upon whom the Sellers’ Representative and Buyer shall mutually agree (such accounting firm being referred to as the “Final Accounting Firm”), to resolve all such disagreements. If Buyer and the Sellers’ Representative are unable to agr...
Determination of EBITDA. Within 60 days after the last day of the Earnout Period, the Buyers will prepare and deliver to the Seller Representative a statement (the "EBITDA STATEMENT") that sets forth EBITDA for the Earnout Period. The Seller Representative shall cooperate as reasonably requested by Buyers in connection with the preparation of the foregoing. The Seller Representative may dispute the calculation of EBITDA set forth on an EBITDA Statement by delivering a Notice of Disagreement to Buyers within 30 days following delivery of the EBITDA Statement. Any Notice of Disagreement delivered pursuant to this Section 2.4(d) shall specify in reasonable detail the nature and dollar amount of any disagreement so asserted and shall be delivered only if (and to the extent that) the Seller Representative reasonably and in good faith determines that the EBITDA set forth on the EBITDA Statement has not been determined in accordance with the guidelines and procedures set forth in this Agreement. During the 30 days following delivery of a Notice of Disagreement, the parties shall seek in good faith to resolve in writing any differences which they may have with respect to the matters specified in the Notice of Disagreement. At the end of the 30 day period referred to above, the parties shall submit to the Accounting Firm for review and resolution of all matters (but only such matters) which were properly included in the Notice of Disagreement, and the Accounting Firm shall make a final determination of EBITDA in accordance with the guidelines and procedures set forth in this Agreement. If the parties are unable to mutually agree on an Accounting Firm, the Seller Representative and Buyers shall select a "big-five" Accounting Firm by lot (after excluding Ernst & Young, LLP and the Companies' accountants prior to the Closing). The parties will cooperate with the Accounting Firm during the term of its engagement. In resolving any matters in dispute, the Accounting Firm may not assign a value to any item in dispute greater than the greatest value for such item assigned by Buyers, on the one hand, or the Seller Representative, on the other hand, or less than the smallest value for such item assigned by Buyers, on the one hand, or the Seller Representative, on the other hand. The Accounting Firm's determination will be based solely on presentations by Buyers and the Seller Representative or their respective representatives which are in accordance with the guidelines and procedures set forth in th...
Determination of EBITDA. As used herein "EBITDA" shall mean ----------------------- the earnings of SCC and the Subsidiaries on a consolidated basis before deductions or offset for interest expense, taxes, depreciation and amortization, as determined by the accountant regularly servicing SCC at the end of the Determination Year (the "SCC Accountant") in accordance with generally accepted accounting principals ("GAAP") consistently applied with respect to prior periods. Such determination shall be exclusive of Extraordinary Business Expenses incurred by SCC, including, but not limited to, any amounts paid by SCC (i) under Section 4.e, and (ii) in satisfaction of all or part of the WC Line of Credit after Closing, and shall be adjusted for non-cash items related to gains/losses on asset dispositions and writedowns, compensation expense related to stock option activity (deferred compensation), any executive compensation awards payable in stock of SCC or, after Closing,
Determination of EBITDA. Within thirty (30) days after the end of the Earn-Out Period, Parent and its auditors shall conduct a review of the financial statements of the Company as of the end of the Earn-Out Period and shall prepare and deliver to the Representative a computation of EBITDA for the Earn-Out Period (the "EBITDA Earn-Out Notice"). Parent and its auditors shall make available to the Representative and his auditors all records and work papers used in preparing EBITDA for the Earn-Out Period. If the Representative disagrees with the computation of EBITDA, the Representative may, within thirty (30) days after receipt of the EBITDA Earn-Out Notice, deliver a notice (an "EBITDA Earn-Out Objection Notice") to Parent setting forth the Representative's calculation of EBITDA for such Earn-Out Period. If the Representative does not deliver an Earn-Out Objection Notice within such 30 day period, then EBITDA for the Earn-Out Period shall be deemed finally determined to be as set forth in the EBITDA Earn-Out Notice. Parent and the Representative shall use reasonable best efforts to resolve any disagreements as to the computation of EBITDA for such Earn-Out Period, but if they do not obtain a final resolution within 30 days after Parent has received the Earn-Out Objection Notice, Parent and the Representative shall jointly retain an independent accounting firm of recognized national standing to resolve any remaining disagreements (the "Firm"). Parent and the Representative shall direct the Firm to render a determination within 30 days after its retention and Parent, the Representative, and their respective agents will cooperate with the Firm during its engagement. The Firm will consider only those items and amounts in the calculation of EBITDA set forth in the EBITDA Earn-Out Objection Notice which Parent and the Representative are unable to resolve. Parent and the Representative shall each make written submissions to the Firm promptly (and in any event within 30 days after the Firm's engagement), which submissions shall contain such party's computation of EBITDA for the Earn-Out Period and information, arguments, and support for such party's position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the Firm may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The Firm's determination will be base...
Determination of EBITDA. Promptly following the conclusion of the Company’s annual year-end audit for each of the years 2005, 2006, and 2007 (but no later than April 1 of the following year), the Buyer will deliver to Shareholder an income statement of Company for such year, prepared in accordance with GAAP, and a schedule (the “EBITDA Schedule”) setting forth the EBITDA of the Company for the relevant period. Accompanying the income statement and EBITDA Schedule shall be a certification from the Buyer’s Chief Financial Officer indicating that the income statement and EBITDA Schedule were prepared as required by this Agreement.
Determination of EBITDA. EBITDA shall be determined at the end of each of the Company's fiscal years 2009, 2010, 2011, and 2012, in accordance with the provisions of this Section 2.3. EBITDA shall be calculated by Purchaser in accordance with GAAP pursuant to Purchaser's historical practices, consistently applied in accordance with past practice, which calculation shall be due no later than 90 days after the end of the fiscal year to which the calculation of EBITDA relates. Absent manifest error, the calculation of EBITDA pursuant to this Section 2.3(b) shall not be subject to challenge or objection by Seller or AFT
Determination of EBITDA. For the purposes of this Agreement, the following definitions shall apply: (i) “Bonus Period” means the period commencing on the date hereof and ending on the fifth anniversary of the date hereof. (ii) “EBITDA” means, as determined by the Employer, acting reasonably using the Business’s Financial Statements and, for the avoidance of doubt, the allocation provisions set forth in Article One, for any given period, the earnings generated during such period by the Business after giving effect to the deduction or provision for all operating and other expenses of such Business and of the Company generally to the extent reasonably associated with revenues of the Business (“Deductible Expenses”), including, without limitation, depreciation on capital assets deployed, allocable expenses (including all sales, marketing and development costs associated with sales by the Employer of the Business’s inventory and/or sales by the Business of other of the Employer’s products as contemplated by Article One and in respect of other product sales permitted by the Company), total compensation (inclusive of bonuses) payable to any employee, agent or consultant, any Annual Bonus paid or payable pursuant to this Agreement, insurance costs and all Overhead Allocations, but before any deduction or provision for interest, income taxes, depreciation of Purchased Assets or amortization of intangible Purchased Assets, in all cases determined in accordance with GAAP. For purposes of calculating EBITDA it is expressly acknowledged that an Overhead Allocation shall be made. It is further expressly acknowledged that should EBITDA as calculated for any given period be a negative amount, such negative amount shall be carried forward and applied against any otherwise positive EBITDA of the next successive applicable periods, if any, on a dollar-for-dollar basis, so as to reduce the EBITDA for purposes of determining the Annual Bonus, if any, of such next successive applicable periods until such negative EBITDA amount has been fully applied against otherwise positive EBITDA, if any, during the Bonus Period. For the avoidance of doubt, in the event EBITDA for any given period (including as may be adjusted for any previous negative EBITDA) is positive but below $2,000,000, there will be no carryover of such EBITDA to subsequent periods. (iii) “Overhead Allocation” means, for any given period, a ratable allocation of general overhead expenses of the Employer applied by the Employer to the Busines...
Determination of EBITDA. Resolution of Conflicts. Beginning no later than the first quarter of fiscal year 2011, the Company and its audit committee shall engage the Company’s outside audit firm to conduct a review of it’s interim financial statements for each of the first, second and third quarters of each fiscal year, under the standards and guidance for conducting interim reviews as set forth in Statement of Accounting Standards No. 100, Interim Financial Statements, as the same may be amended from time to time. Such quarterly reviews shall be made available to FMC upon request. In connection with the calculation of the Multiple and the Exercise Price, as the case may be, each of FMC (for purposes of calculating the Multiple) and Xxxxxxxxx Inc. (for purposes of calculating the Exercise Price) shall deliver promptly, but in any event within 20 calendar days after delivery of the Right Notice, to the other Party its calculation of its respective EBTIDA for purposes of such required calculations. Each such calculation shall include such additional information as is reasonably necessary to support such calculation. Each of FMC and Xxxxxxxxx Inc., as the case may be, shall have the right to object to the calculation of EBTIDA prepared by the other Party and such Parties agree to consult with one another to resolve any objections raised by either Party. In the event that either Party is not able to resolve any such objection, each of FMC and Xxxxxxxxx Inc. agree that the dispute shall be referred for determination (which determination shall be final and non-appealable and binding on the Parties) to a nationally-recognized independent public accounting firm that is not then under engagement by any of the Parties. Each of FMC and Xxxxxxxxx Inc. shall submit their proposed good faith calculation of the EBITDA calculation under dispute within 15 calendar days of the selection of the independent public accounting firm, and such accounting firm shall resolve the dispute through “baseball” arbitration. The Party whose calculation is not selected by the independent public accounting firm shall pay all costs and expenses incurred by each Party and the independent public accounting firm in connection with the resolution of the disputed calculation of the EBITDA.
Determination of EBITDA. The Parties agree that EBITDA shall (i) exclude transaction expenses associated with the Closing of this Agreement, including costs associated with the Acquisition Loan Agreement and any incremental costs associated with an increase in the amounts financed under such agreement where the proceeds are used to pay the Final Cash Purchase Price and Earn-Out Amount (“Transaction Costs”), and (ii) exclude any non-customary measures to increase or decrease EBITDA. Subject to the terms of the LLC Agreement, Buyer shall have the primary discretion with regard to matters relating to operation of the Company; provided, Buyer and the Seller Parties shall operate the Company in good faith and in a commercially reasonable manner and shall not knowingly or intentionally, in the operation of the Company, (i) take any action, or cause any action to be taken, the primary purpose of which is to shift any Company-related revenues or expenses to or from an Affiliate of the Company or shift any Company-related revenues or expenses into or out of any fiscal year from periods in which such revenues or expenses would otherwise be recognized in accordance with the Accounting Principles, (ii) allocate any corporate overhead expenses of Buyer or any Affiliate of Buyer to the Company (other than, for the avoidance of doubt, allocations of third party fees and expenses for goods and services procured or arranged by Buyer or any of its Affiliates that cover, are for the benefit or use of or otherwise apply to the Company, such as insurance policies, tax services and other goods and services that involve payment to third parties) or (iii) take any actions in bad faith, in the case of each of clauses (i), (ii) and (iii), with the intent and effect of artificially avoiding, reducing or increasing the Earn-Out Amount, if any, hereunder by such actions. In the event Buyer operates any businesses other than the business of the Company out of the Company’s principal place of business, a proportionate share of Buyer’s corporate overhead expense will be allocated to such other businesses.”
12. The following Section is hereby added to ARTICLE VII:
Determination of EBITDA. The 2006 EBITDA, 2007 EBITDA and 2008 EBITDA shall be as determined by the Company's Chief Financial Officer ("CFO") and approved by the Company's Audit Committee, which shall consist of a majority of independent directors ("Audit Committee"), based on the consolidated financial statements of the Targets for the applicable twelve (12) month period ending on December 31, as prepared by the CFO. The Company shall deliver to the Sellers a certified copy of the calculation of 2006 EBITDA, 2007 EBITDA and 2008 EBITDA, as applicable, as determined above, within 120 days following January 1, together with a written notice (the "Earnout Notice") showing the calculation of the EBITDA for the applicable year and the corresponding Earnout Payment due and owing to Sellers, if any. Notwithstanding anything contained in this Section 3.2 to the contrary, the CFO or the Audit Committee shall have the right to designate and authorize the Company's firm of certified public accountants to make the determination of 2006 EBITDA, 2007 EBITDA and/or 2008 EBITDA in connection with the determination of the existence the Minimum EBITDA Threshold for the corresponding year and shall have the right to adjust such determination based on the annual audit of the Company's financial statements (the EBITDA Calculation). The determination of the 2006 EBITDA, 2007 EBITDA and 2008 EBITDA in accordance with this Section 3.2 shall be binding upon the Company and the Sellers. Notwithstanding the foregoing, Sellers shall have the right to receive a copy of the 2006 EBITDA, 2007 EBITDA and 2008 EBITDA at the same time it is sent to the Audit Committee and shall be permitted to consult with Audit Committee, if they so choose regarding such calculations.
