Common use of EBITDA Calculations Clause in Contracts

EBITDA Calculations. (i) For purposes of calculating EBITDA of the Corporation for any EBITDA Target Period, the Corporation shall promptly (but in no event later than the second (2nd) Business Day following the public disclosure of the Corporation's earnings for the reporting period ending on the last day of such EBITDA Target Period (whether by press release, the filing of a Form 10-K, 10-Q or 8-K with the Commission, or otherwise)) deliver to the Holder a certificate (an "EBITDA Certificate"), certified by the Chief Financial Officer of the Corporation as being true and correct to the best of his or her knowledge. Each EBITDA Certificate shall set forth (x) EBITDA of the Corporation for the relevant EBITDA Target Period and (y) the calculation of such EBITDA amount in reasonable detail. Upon receipt by the Holder of any EBITDA Certificate, the Holder may, within five (5) Business Days after the date of receiving such EBITDA Certificate (the "EBITDA Review Period"), deliver to the Corporation an objection notice setting forth the Holder's objections to the EBIDTA calculations set forth in such EBITDA Certificate together with a summary of the reasons for such objections (each such notice delivered by the Holder, an "EBITDA Objection Notice"). With respect to any EBITDA Certificate, if the Holder does not deliver an EBITDA Objection Notice within the applicable EBITDA Review Period, such EBITDA Certificate shall be final and binding. (ii) If, with respect to an EBITDA Certificate, the Holder delivers an EBITDA Objection Notice to the Corporation within the applicable EBITDA Review Period, the Corporation and the Holder shall use their reasonable best efforts to resolve the objections described in such EBITDA Objection Notice within five (5) Business Days by written agreement (the "EBITDA Adjustments") and, if the Holder and the Corporation so resolve any such differences, the EBITDA Certificate in question, as adjusted pursuant to the EBITDA Adjustments, shall be final and binding. (iii) If any objections raised by the Holder in an EBITDA Objection Notice are not resolved by EBITDA Adjustments within five (5) Business Days following receipt by the Corporation of an EBITDA Objection Notice, then the Holder shall submit the objections that are then unresolved to a national accounting firm reasonably acceptable to the Corporation (such firm, the "Accounting Firm"), and shall direct the Accounting Firm to: (x) resolve the unresolved objections (based solely on the presentations by the Corporation and the Holder and in accordance with GAAP) as promptly as reasonably practicable and (y) deliver written notice to each of the Corporation and the Holder setting forth its resolution of the disputed matters. The EBITDA Certificate in question, after giving effect to any EBITDA Adjustments and to the resolution of disputed matters by the Accounting Firm, shall be final and binding. (iv) The Corporation shall make available to the Holder and, if applicable, the Accounting Firm, such books, records and other information (including work papers) as any of the foregoing may reasonably request to prepare or review any EBITDA Certificate or any matters submitted to the Accounting Firm. The fees and expenses of the Accounting Firm hereunder shall be borne by the party whose calculations were most at variance with those of the Accounting Firm.

EBITDA Calculations. (ia) For purposes of calculating The 2005 EBITDA Calculations shall become final and binding on Seller, Buyer and Parent unless Seller notifies Buyer in writing within 15 days after delivery to Seller of the Corporation for any 2005 EBITDA Target PeriodCalculations, and specifies therein the Corporation shall promptly (but in no event later than the second (2nd) Business Day following the public disclosure of the Corporation's earnings basis and reason for the reporting period ending on dispute and the last day of such EBITDA Target Period (whether by press release, the filing of a Form 10-K, 10-Q or 8-K with the Commission, or otherwise)) deliver to the Holder a certificate (an "EBITDA Certificate"), certified by the Chief Financial Officer of the Corporation as being true and correct to the best of his or her knowledge. Each EBITDA Certificate shall set forth (x) EBITDA of the Corporation for the relevant EBITDA Target Period and (y) the calculation of such EBITDA amount which is in reasonable detail. Upon receipt by the Holder of any EBITDA Certificate, the Holder may, within five (5) Business Days after the date of receiving such EBITDA Certificate dispute (the "EBITDA Review Period"), deliver to the Corporation an objection notice setting forth the Holder's objections to the EBIDTA calculations set forth in such EBITDA Certificate together with a summary of the reasons for such objections (each such notice delivered by the Holder, an "EBITDA Objection NoticeDisputed Matters"). With During a period of 10 days following the delivery of such notice, Buyer and Seller shall attempt to resolve any Disputed Matters. If, at the end of such 10 day period, Buyer and Seller shall have failed to reach agreement with respect to the Disputed Matters, the unresolved Disputed Matters shall be referred to BDO Xxxxxxx LLP or if such firm declines to act in such capacity, any such other firm of independent nationally recognized accountants chosen and mutually accepted by Buyer and Seller (the "Independent Accountants") for resolution. Buyer and Seller shall provide the Independent Accountants with a written statement that includes their respective calculations of the 2005 EBITDA, and the Independent Accountant's decision as to the Final 2005 EBITDA Certificateshall be communicated to the parties in writing. The Independent Accountants shall be instructed to use every reasonable effort to make its determination with respect to the Disputed Matters (the "Independent Accountant's Final 2005 EBITDA Calculations") within 30 days of the submission to them of the Disputed Matters. Buyer and Parent shall give the Independent Accountants, during normal business hours and upon reasonable request, access to all work papers and procedures used to prepare Buyer's determination of the 0000 XXXXXX and to Buyer's and Parent's financial employees and accountants. The final determination of the 2005 EBITDA (the "Final 0000 XXXXXX") shall be the 2005 EBITDA Calculations as adjusted by any Disputed Matters resolved by the parties and by the Independent Accountant's Final 2005 EBITDA Calculations, if any. Each of the Holder does not deliver an EBITDA Objection Notice within parties shall bear their own respective costs and expenses incurred in connection with such determination, and one-half of the applicable EBITDA Review Period, such EBITDA Certificate fees of the Independent Accountants shall be paid by Buyer and one-half by Seller. This provision for the resolution of any Disputed Matters shall be the sole and exclusive remedy of the parties for resolving any Disputed Matter and shall be specifically enforceable by the parties and the decision of the Independent Accountants in accordance with the provisions hereof shall be final and bindingbinding and there shall be no right of appeal therefrom, absent fraud or clear error. (iib) If, with respect In the event that Buyer or Parent does not pay to an EBITDA CertificateSeller the entire amount of the 2005 Earn-Out Consideration when due hereunder, the Holder delivers unpaid balance payable to Seller shall bear interest at an EBITDA Objection Notice annual rate equal to the Corporation within lesser of (i) the applicable EBITDA Review Period"prime rate" of interest reported from time to time in the Wall Street Journal, Southwest Edition, in the Corporation and the Holder shall use their reasonable best efforts to resolve the objections described in "Money Rates" section or equivalent substitute section of such EBITDA Objection Notice within five (5) Business Days by written agreement paper (the "EBITDA AdjustmentsPrime Rate") andplus 6% or (ii) the maximum non-usurious rate permitted by law, if from the Holder and the Corporation so resolve any due date of such differences, the EBITDA Certificate in question, as adjusted pursuant payment to the EBITDA Adjustments, shall be final and bindingdate of payment in full. (iii) If any objections raised by the Holder in an EBITDA Objection Notice are not resolved by EBITDA Adjustments within five (5) Business Days following receipt by the Corporation of an EBITDA Objection Notice, then the Holder shall submit the objections that are then unresolved to a national accounting firm reasonably acceptable to the Corporation (such firm, the "Accounting Firm"), and shall direct the Accounting Firm to: (x) resolve the unresolved objections (based solely on the presentations by the Corporation and the Holder and in accordance with GAAP) as promptly as reasonably practicable and (y) deliver written notice to each of the Corporation and the Holder setting forth its resolution of the disputed matters. The EBITDA Certificate in question, after giving effect to any EBITDA Adjustments and to the resolution of disputed matters by the Accounting Firm, shall be final and binding. (iv) The Corporation shall make available to the Holder and, if applicable, the Accounting Firm, such books, records and other information (including work papers) as any of the foregoing may reasonably request to prepare or review any EBITDA Certificate or any matters submitted to the Accounting Firm. The fees and expenses of the Accounting Firm hereunder shall be borne by the party whose calculations were most at variance with those of the Accounting Firm.

EBITDA Calculations. In calculating the EBITDA of the Company for purposes of the Contingent Cash Payment and the Contingent Stock Payment, Buyers agree that they shall: (i) For purposes measure only the Business transferred hereunder and not aggregate loss activities from any other Affiliates of calculating EBITDA of the Corporation for any EBITDA Target Period, the Corporation shall promptly (but in no event later than the second (2nd) Business Day following the public disclosure of the Corporation's earnings for the reporting period ending on the last day of such EBITDA Target Period (whether by press release, the filing of a Form 10-K, 10-Q or 8-K with the Commission, or otherwise)) deliver to the Holder a certificate (an "EBITDA Certificate"), certified by the Chief Financial Officer of the Corporation as being true and correct to the best of his or her knowledge. Each EBITDA Certificate shall set forth (x) EBITDA of the Corporation for the relevant EBITDA Target Period and (y) the calculation of such EBITDA amount in reasonable detail. Upon receipt by the Holder of any EBITDA Certificate, the Holder may, within five (5) Business Days after the date of receiving such EBITDA Certificate (the "EBITDA Review Period"), deliver to the Corporation an objection notice setting forth the Holder's objections to the EBIDTA calculations set forth in such EBITDA Certificate together with a summary of the reasons for such objections (each such notice delivered by the Holder, an "EBITDA Objection Notice"). With respect to any EBITDA Certificate, if the Holder does not deliver an EBITDA Objection Notice within the applicable EBITDA Review Period, such EBITDA Certificate shall be final and binding.Parent; (ii) Ifinclude all profits from the Business transferred hereunder regardless of the fact that such Business will be held by three separate entities-PPF, with respect to an PPC and PPK; (iii) reduce the EBITDA Certificatethreshold of $3,2000,000 in the event that a substantial portion of the Business transferred hereunder is disposed of other than in the Ordinary Course of Business during the first three (3) consecutive years. In such event, the Holder delivers an EBITDA Objection Notice threshold shall be reduced in proportion to the Corporation within value of that the applicable assets comprising the portion of the Business disposed of bears in relation to the Purchase Price. For purposes of this determination, assets disposed of shall be valued consistent with the allocations of the Purchase Price set forth in SCHEDULE 1.04. (iv) take no write-off and/or charge affecting EBITDA Review Periodin any quarter which, if taken in the Corporation next succeeding quarter would have resulted in a Contingent Cash payment and the Holder shall Contingent Stock Payment. (v) use their reasonable best efforts to resolve the objections described in such EBITDA Objection Notice within five (5) Business Days by written agreement (the "EBITDA Adjustments") and, if the Holder and the Corporation so resolve any such differences, maximize the EBITDA Certificate in question, as adjusted pursuant to of the Company consistent with Buyers' Ordinary Course of Business; (vi) ensure that write-off and charges affecting EBITDA Adjustments, of the Company shall be final directly related to operations of the Business and binding.not related to other Affiliates of the Buyers or Parent; (iiivii) If any objections raised by ensure that compensation and overhead for the Holder in an Company shall be consistent with the Ordinary Course of Business of the Parent and consistent with allocations made to other Subsidiaries of Parent; (viii) cause the Buyers' accountants to make the calculations of EBITDA Objection Notice are not resolved by EBITDA Adjustments within five (5) Business Days following receipt by of the Corporation of an EBITDA Objection Notice, then the Holder shall submit the objections that are then unresolved to a national accounting firm reasonably acceptable to the Corporation (such firm, the "Accounting Firm"), and shall direct the Accounting Firm to: (x) resolve the unresolved objections (based solely on the presentations by the Corporation and the Holder and Company in accordance with GAAP, applied consistently; and (ix) as promptly as reasonably practicable and (y) deliver written notice provide access by Sellers to each the accounting records relating to the business for the purpose of confirming the EBITDA of the Corporation and the Holder setting forth its resolution of the disputed matters. The EBITDA Certificate in question, after giving effect to any EBITDA Adjustments and to the resolution of disputed matters by the Accounting Firm, shall be final and bindingCompany. (iv) The Corporation shall make available to the Holder and, if applicable, the Accounting Firm, such books, records and other information (including work papers) as any of the foregoing may reasonably request to prepare or review any EBITDA Certificate or any matters submitted to the Accounting Firm. The fees and expenses of the Accounting Firm hereunder shall be borne by the party whose calculations were most at variance with those of the Accounting Firm.

EBITDA Calculations. (ia) For During the period from the First Closing Date to the Second Closing Date, the Parties hereto acknowledge and agree that Parent and Sellers shall review and approve on an annual basis the report prepared by management setting forth the calculation of EBITDA for such period (“EBITDA Report”) for all purposes including for purposes of calculating NewCo’s EBITDA of and the Corporation for any Second Closing Purchase Price. The EBITDA Target Period, the Corporation Report prepared by management shall promptly (but in no event later than the second (2nd) Business Day following the public disclosure of the Corporation's earnings for the reporting period ending on the last day of such EBITDA Target Period (whether by press release, the filing of a Form 10-K, 10-Q or 8-K with the Commission, or otherwise)) deliver to the Holder a certificate (an "EBITDA Certificate"), certified by the Chief Financial Officer of the Corporation as being true and correct be complete to the best of his the Companies’ Knowledge with respect to transactions occurring in the ordinary course of business during the applicable period (i.e. adjusted for out-of-period adjustments). Parent and the Sellers shall be provided with such information, schedules and data as necessary or her knowledgedesirable to verify the EBITDA calculation. Each EBITDA Certificate shall set forth (x) EBITDA Upon approval of Parent and the Sellers, the determination of the Corporation EBITDA calculation for the relevant EBITDA Target Period any period shall be deemed conclusive and (y) final and shall not be subject to further review, challenge or adjustment except as expressly permitted herein. All Distributions to NewCo members shall be excluded from the calculation of such NewCo’s EBITDA amount in reasonable detail. Upon receipt by for purposes of determining the Holder of any EBITDA Certificate, the Holder may, within five Second Closing Purchase Price. (5b) Business Days Within 30 days after the date Sellers’ receipt of receiving such the EBITDA Certificate (Report, each of the "EBITDA Review Period"), Sellers shall have the right to deliver to Parent an Objection Statement. If the Corporation Sellers do not deliver an objection notice setting forth Objections Statement within such 30-day period, then the Holder's objections EBITDA Report shall become final and binding upon all Parties. If either of the Sellers do deliver an Objections Statement within such 30-day period, then the Sellers and Parent shall negotiate in good faith for 15 days following Parent’s receipt of such Objections Statement to the EBIDTA calculations resolve such objections. After such 15-day period, any item or matter set forth in such the EBITDA Certificate together with a summary of the reasons for such objections (each such notice delivered by the Holder, Report that is not an "EBITDA Objection Notice"). With respect to any EBITDA Certificate, if the Holder does not deliver an EBITDA Objection Notice within the applicable EBITDA Review Period, such EBITDA Certificate Adjustment Dispute shall be become final and binding. (ii) If, with respect to an EBITDA Certificate, the Holder delivers an EBITDA Objection Notice to the Corporation within the applicable EBITDA Review Period, the Corporation binding upon all Parties. If Parent and the Holder shall use their reasonable best efforts Sellers are unable to resolve the all objections described in during such EBITDA Objection Notice within five (5) Business Days by written agreement (the "EBITDA Adjustments") and15-day period, if the Holder then any remaining Adjustment Disputes, and the Corporation so resolve any only such differences, the EBITDA Certificate in question, as adjusted pursuant to the EBITDA Adjustmentsremaining Adjustment Disputes, shall be final and binding. (iii) If any objections raised by the Holder in an EBITDA Objection Notice are not resolved by EBITDA Adjustments within five (5) Business Days following receipt by the Corporation of an EBITDA Objection Notice, then the Holder shall submit the objections that are then unresolved to a national accounting firm reasonably acceptable to the Corporation (such firm, the "Accounting Firm"), and shall direct the Accounting Firm to: (x) resolve the unresolved objections (based solely on the presentations by the Corporation and the Holder and in accordance with GAAP) as promptly as reasonably practicable and (y) deliver written notice to each of the Corporation and the Holder setting forth its resolution of the disputed matters. The EBITDA Certificate in question, after giving effect to any EBITDA Adjustments and to the resolution of disputed matters by the Accounting Firm, shall be final and binding. (iv) The Corporation shall make available to the Holder and, if applicable, the Accounting Firm, such books, records and other information (including work papers) as any of the foregoing may reasonably request to prepare or review any EBITDA Certificate or any matters submitted to the Accounting Firm. The fees Accounting Firm shall be instructed to resolve any such remaining Adjustment Disputes in accordance with the terms of this Agreement within 30 days after its appointment (or such longer period as Parent and the Sellers may agree). The Accounting Firm shall not be bound by the rules of arbitration. The resolution of such Adjustment Disputes by the Accounting Firm (i) shall be set forth in writing, (ii) shall be within the range of dispute between Parent and the Sellers, and (iii) shall be conclusive and binding upon all the Parties upon which a judgment may be rendered by a court having proper jurisdiction thereover. Upon delivery of such resolution, the EBITDA Report, as modified in accordance with such resolution, shall become final and binding upon all Parties. (c) The fees, costs and expenses of the Accounting Firm hereunder shall be borne by either Parent or the party whose calculations were most at variance with those Sellers as follows: (i) if the Accounting Firm determines that NewCo’s EBITDA is more than three percent (3%) greater or lower than the amount set forth in the EBITDA Report determined by Parent, then Parent shall bear the fees, costs and expenses of the Accounting Firm, and (ii) if the Accounting Firm determines that NewCo’s EBITDA is less than three percent (3%) greater or lower than the amount set forth in the EBITDA Report determined by Parent, then the Sellers shall bear the fees, costs and expenses of the Accounting Firm through the payment of such fees, costs and expenses by Parent.

EBITDA Calculations. “EBITDA Period” shall mean the period commencing on the Closing Date and ending on December 31, 2007. No later than forty-five (45) days following the end of the EBITDA Period, SYS shall in good faith calculate, prepare and deliver to the Stockholder Representative a statement showing the earnings before interest, taxes, depreciation and amortization, calculated in accordance with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent basis during the periods involved, generated by the Surviving Corporation during the EBITDA Period (“EBITDA”), and showing in reasonable detail the Earnout Consideration or Clawback Consideration, as applicable, calculated in accordance with Section 2.5(b). The statement of calculations referred to in this Section 2.5(a) shall be referred to herein as the “EBITDA Calculations.” Any products of Ai Metrix sold during the EBITDA Period in conjunction with products or services of other segments of SYS’s business shall be taken into account in calculating EBITDA based on the proportional value of such products or services. For the avoidance of doubt, for the purpose of determining the EBITDA Calculations only, (i) For 90% of all deferred maintenance revenue booked by Ai Metrix prior to the Closing that, but for the consummation of the Merger and the application of purchase price accounting with respect thereto, would otherwise have been recognized as revenue during the EBITDA Period, shall be taken into account in calculating EBITDA, (ii) 10% of all deferred maintenance revenue booked by Ai Metrix during the last three months of the EBITDA Period that have not, as of the end of the EBITDA Period, been recognized as revenue shall constitute revenue for purposes of calculating EBITDA to the extent that such bookings are reasonably likely to be recognized during the 12-month period following the later of (A) the date of booking such revenue and (B) the end of the Corporation for any EBITDA Target Period, and (iii) software license bookings received during the Corporation shall promptly (but in no event later than the second (2nd) Business Day 45-day period following the public disclosure EBITDA Period that are invoiced and that can be recognized as revenue during that 45-day period shall constitute revenue for purposes of the Corporation's earnings for the reporting period ending on the last day of such calculating EBITDA Target Period (whether by press release, the filing of a Form 10-K, 10-Q or 8-K with the Commission, or otherwise)) deliver to the Holder a certificate extent that such bookings are reasonably likely to be collected upon the terms on which such bookings were made. All Transaction Expenses (an "EBITDA Certificate"), certified by the Chief Financial Officer of the Corporation as being true and correct to the best of his or her knowledge. Each EBITDA Certificate defined in Section 5.3(e) below) shall set forth (x) EBITDA of the Corporation for the relevant EBITDA Target Period and (y) be excluded from the calculation of such EBITDA amount in reasonable detail. Upon receipt by the Holder EBITDA, regardless of any EBITDA Certificate, the Holder may, within five (5) Business Days after the date of receiving such EBITDA Certificate (the "EBITDA Review Period"), deliver to the Corporation an objection notice setting forth the Holder's objections to the EBIDTA calculations set forth in such EBITDA Certificate together with a summary of the reasons for such objections (each such notice delivered by the Holder, an "EBITDA Objection Notice"). With respect to any EBITDA Certificate, if the Holder does not deliver an EBITDA Objection Notice within the applicable EBITDA Review Period, such EBITDA Certificate shall be final and bindingwhen incurred. (ii) If, with respect to an EBITDA Certificate, the Holder delivers an EBITDA Objection Notice to the Corporation within the applicable EBITDA Review Period, the Corporation and the Holder shall use their reasonable best efforts to resolve the objections described in such EBITDA Objection Notice within five (5) Business Days by written agreement (the "EBITDA Adjustments") and, if the Holder and the Corporation so resolve any such differences, the EBITDA Certificate in question, as adjusted pursuant to the EBITDA Adjustments, shall be final and binding. (iii) If any objections raised by the Holder in an EBITDA Objection Notice are not resolved by EBITDA Adjustments within five (5) Business Days following receipt by the Corporation of an EBITDA Objection Notice, then the Holder shall submit the objections that are then unresolved to a national accounting firm reasonably acceptable to the Corporation (such firm, the "Accounting Firm"), and shall direct the Accounting Firm to: (x) resolve the unresolved objections (based solely on the presentations by the Corporation and the Holder and in accordance with GAAP) as promptly as reasonably practicable and (y) deliver written notice to each of the Corporation and the Holder setting forth its resolution of the disputed matters. The EBITDA Certificate in question, after giving effect to any EBITDA Adjustments and to the resolution of disputed matters by the Accounting Firm, shall be final and binding. (iv) The Corporation shall make available to the Holder and, if applicable, the Accounting Firm, such books, records and other information (including work papers) as any of the foregoing may reasonably request to prepare or review any EBITDA Certificate or any matters submitted to the Accounting Firm. The fees and expenses of the Accounting Firm hereunder shall be borne by the party whose calculations were most at variance with those of the Accounting Firm.