EBITDA Determination. Within ninety (90) days after the end of each of the First Period, Second Period and Third Period, Buyer shall cause to be prepared and delivered to Sellers a statement (each, a "Deferred Consideration Statement"), prepared by Buyer acting in good faith, setting forth the Deferred Consideration, if any, with respect to such period, computed in accordance with this Article II. During the 30-day period following the delivery of the Deferred Consideration Statement. Sellers will be permitted to review Buyer's working papers (and all other financial information reasonably requested by Sellers directly) relating to the Deferred Consideration Statement. The Deferred Consideration Statement shall become final and binding on the parties hereto on the tenth day following delivery thereof to Sellers unless the Sellers give written notice of disagreement ("Notice of Disagreement") to Buyer prior to said date. Any Notice of Disagreement shall specify in sufficient detail the nature of any disagreement so asserted, including the specific dollar amount of the Sellers' determination of EBITDA for such period and the basis therefore. If a Notice Disagreement is received by Buyer in a timely manner, then the Deferred Consideration Statement (as revised in accordance with clause (x) or (y) below) shall become final and binding upon the parties on the earlier of (x) the date the parties hereto resolve in writing any difference they may have with respect to any matter specified in the Notice of Disagreement or (y) the date the disputed matters are finally resolved by the Settlement Accountant (selected as set forth in Section 2.4). During the thirty (30) day period following the delivery of the Notice of Disagreement, the Parties shall seek in good faith to resolve in writing any differences which they may have with respect to any matter specified in the Notice of Disagreement. If, at the end of such thirty (30) day period, the Parties have not reached agreement on such matters, the matters which remain in dispute shall be promptly submitted to the Settlement Accountant for review and resolution. The Settlement Accountant shall render a decision resolving the matters in dispute within thirty (30) days following their submission to such Settlement Accountant by deciding that either the decision of the Sellers or that of Buyer or a position in between those positions (but not higher or lower) is correct with respect to any particular matter. Except as set forth in the next sent...
EBITDA Determination. To the extent the One Year EBITDA Performance Criteria equals or exceeds the EBITDA Threshold below for the One Year EBITDA Performance Period, the “First Year Adjustment Percentage” shall be determined as in the following paragraph regarding NPS Determination. To the extent the One Year EBITDA Performance Criteria is less than the EBITDA Threshold below for the One Year EBITDA Performance Period, the “First Year Adjustment Percentage” shall equal 0%, and the following paragraph regarding NPS Determination shall otherwise have no applicability. Description ($MM) EBITDA Threshold NPS Determination (if applicable). Based on the First Year NPS Performance Period and First Year NPS Performance Criteria, and subject to the prior paragraph, the “First Year Adjustment Percentage” shall equal 25% multiplied by the First Year Multiplier below: Description First Year Multiplier NPS Threshold 50% NPS Target 100%
EBITDA Determination. To the extent the Three Year EBITDA Performance Criteria equals or exceeds the EBITDA Threshold below for the Three Year EBITDA Performance Period, the “Final Target Adjustment Percentage” shall be determined as in the following paragraph regarding NPS Determination. To the extent the Three Year EBITDA Performance Criteria is less than the EBITDA Threshold below for the Three Year EBITDA Performance Period, the “Final Target Adjustment Percentage” shall equal the Second Year Adjustment Percentage (provided, however, that the Committee may, at the time of certification, reduce the Final Target Adjustment Percentage to such percentage as the Committee may determine in its sole discretion), and the following paragraph regarding NPS Determination shall otherwise have no applicability. Description ($MM) EBITDA Threshold NPS Determination (if applicable). Based on the Third Year NPS Performance Period and Third Year NPS Performance Criteria, and subject to the prior paragraph, the “Final Target Adjustment Percentage” shall equal the Third Year Multiplier below (provided, however, that the Final Target Adjustment Percentage shall in no event be lower than the Second Year Adjustment Percentage; provided, further, that the Committee may, at the time of certification, reduce the Final Target Adjustment Percentage to such percentage as the Committee may determine in its sole discretion): Description Third Year Multiplier Threshold 50% Target 100% General Rules to the Above Determinations. For performance below the level described in the threshold for the NPS Determinations, the applicable multiplier shall be 0%. For performance above the level described in the target for the NPS Determinations, the applicable multiplier remains the same as provided above with respect to the target. Linear interpolation will be used to determine the applicable multiplier for all intermediary points for the NPS Determinations. The Performance Stock Units remain subject to all other provisions (including, without limitation, any applicable adjustment, vesting and settlement provisions) of this Agreement and the Plan. The One Year EBITDA Performance Period, Two Year EBITDA Performance Period, and Three Year EBITDA Performance Period are generally referred to herein as the “EBITDA Performance Periods”. The First Year NPS Performance Period, Second Year NPS Performance Period, and Third Year NPS Performance Period are generally referred to herein as the “NPS Performance Periods”. * Corpora...
EBITDA Determination. For the purposes of Section 2.05(a), the calculation of EBITDA shall be determined by Parent at the end of each Earn Out Measurement Period, and an interim EBITDA determination shall be made six (6) months prior to the end of each Earn Out Measurement Period (each, an “EBITDA Earn Out Notice Date”). No later than forty-five (45) days after each EBITDA Earn Out Notice Date, Parent shall deliver a notice to the Stockholders’ Representative (each such notice, an “EBITDA Earn Out Notice”) specifying the calculation of the cumulative EBITDA amount for the applicable portion of the respective Earn Out Measurement Period. The Stockholders’ Representative shall have thirty (30) days to review the EBITDA Earn Out Notice and provide Parent with notice of any dispute the Stockholders’ Representative may have with the calculation of the EBITDA for the period set forth therein. Parent shall provide the Stockholders’ Representative with reasonable access to books and records of Parent and the Surviving Corporation and shall cooperate with the Stockholders’ Representative during his review of the EBITDA Earn Out Notice. In the event that the Stockholders’ Representative shall dispute Parent’s calculation of EBITDA contained in an EBITDA Earn Out Notice, Parent and the Stockholders’ Representative shall settle any such dispute in accordance with the procedures set forth in Section 2.03(c). Unless the Stockholders’ Representative delivers written notice to Parent on or prior to the thirtieth (30th) day after the Stockholders’ Representative’s receipt of an EBITDA Earn Out Notice specifying in reasonable detail all items disputed by the Stockholder Representative in good faith and the basis therefor (an “Earn Out Dispute Notice”), the Stockholder Representative shall be deemed to have accepted and agreed to the EBITDA amount specified in such EBITDA Earn Out Notice.
EBITDA Determination. To the extent the Two Year EBITDA Performance Criteria equals or exceeds the EBITDA Threshold below for the Two Year EBITDA Performance Period, the “Second Year Adjustment Percentage” shall be determined as in the following paragraph regarding NPS Determination. To the extent the Two Year EBITDA Performance Criteria is less than the EBITDA Threshold below for the Two Year EBITDA Performance Period, the “Second Year Adjustment Percentage” shall equal the First Year Adjustment Percentage, and the following paragraph regarding NPS Determination shall otherwise have no applicability. Description ($MM) EBITDA Threshold $ NPS Determination (if applicable). Based on the Second Year NPS Performance Period and Second Year NPS Performance Criteria, and subject to the prior paragraph, the “Second Year Adjustment Percentage” shall equal 50% multiplied by the Second Year Multiplier below (provided, however, that the Second Year Adjustment Percentage shall in no event be lower than the First Year Adjustment Percentage): Description Second Year Multiplier Threshold Increased by 50% Target Increased by 100%
EBITDA Determination
