Common use of Manner of Computation Clause in Contracts

Manner of Computation. For purposes of this Agreement, ‘‘EBITDA’’ of the Ac- quired Business for any fiscal year shall mean its earnings from operations before interest, taxes, depreciation and amortization, calculated as if it were being op- erated as a separate and independent corporation. EBITDA shall be determined in accordance with generally accepted accounting principles (GAAP) as consis- tently applied by Seller as determined by the firm of independent certified public accountants engaged by Buyer for purposes of its own audit (‘‘Buyer’s Account- ants’’). In determining such EBITDA: (a) EBITDA shall be computed without regard to ‘‘extraordinary items’’ of gain or loss as that term shall be defined in GAAP; (b) EBITDA shall not include any gains, losses or profits realized from the sale of any assets other than in the ordinary course of business; (c) No deduction shall be made for any management fees, general overhead expenses or other intercompany charges, of whatever kind or nature, charged by Buyer to the Acquired Business, except that Buyer may charge interest on any loans or advances made by Buyer to the Acquired Business in connection with its business operations at a rate of ; (d) No deduction shall be made for legal or accounting fees and expenses aris- ing out of this Agreement or the Purchase Agreement; (e) The purchase and sales prices of goods and services sold by the Acquired Business to Buyer or its affiliates or purchased by the Acquired Business from Buyer or its affiliates shall be adjusted to reflect the amounts that the Acquired Business would have realized or paid if dealing with an indepen- dent party in an arm’s-length commercial transaction.

Manner of Computation. For purposes of this Agreement, ‘‘EBITDA’’ "Net Income ---------------------- ---------- Before Taxes" for any Earnout Year shall mean the consolidated net income before ------------ taxes of Deer Valley, after deduction of all expenses, including deductions for profit sharing or bonuses accrued by any employees of Deer Valley, including profit sharing of the Ac- quired Business for any fiscal year shall mean its earnings from operations before interest, taxes, depreciation and amortization, calculated as if it were being op- erated as a separate and independent corporationSellers under the terms of each Employment Agreement. EBITDA Net Income Before Taxes shall be determined in accordance with generally accepted accounting principles ("GAAP") as consis- tently applied by Seller as determined by the firm of independent ---- certified public accountants engaged by Buyer the Parent Company for purposes of auditing its own audit year end financial statements for reporting purposes under the Exchange Act (‘‘Buyer’s Account- ants’’the "Audit"), or such other firm of independent certified public ----- accountants as selected by the Board of Directors of the Parent Company ("Accountants"). In determining such EBITDA:Net Income Before Taxes: ----------- (a) EBITDA shall be computed without regard to ‘‘extraordinary items’’ of gain or loss as that term shall be defined in GAAP; (b) EBITDA shall not include any gains, losses or profits realized from the sale of any assets other than in the ordinary course of business; (c) No deduction shall be made for expenses necessary to maintain the Parent Company's status as a public company reporting under the Exchange Act of 1934, as amended (the "Exchange Act"), including any management feesadditional staff that Deer Valley may require to facilitate additional record keeping necessary for compliance with the Exchange Act, general overhead expenses or other intercompany charges, of whatever kind or nature, charged and any audit and legal fees incurred by Buyer to the Acquired Business, except that Buyer may charge interest on any loans or advances made by Buyer to the Acquired Business Parent Company in connection with its business operations at a rate of filings under the Exchange Act; (d) No deduction shall be made for legal or accounting fees and expenses aris- ing out of this Agreement or the Purchase Agreement; (eb) The purchase and sales prices of goods and services sold by the Acquired Business Deer Valley to Buyer Parent Company or its affiliates Affiliates or purchased or received by the Acquired Business Deer Valley from Buyer Parent Company or its affiliates Affiliates shall be adjusted to reflect the amounts that the Acquired Business Deer Valley would have realized or paid if dealing with an indepen- dent independent party in an arm’sarm's-length commercial transaction; (c) The Parent Company may charge interest on any loans or advances made by Parent Company to Deer Valley in connection with its business operations at an annual rate equal to that rate of interest from time to time announced by The Wall Street Journal as its prime rate (adjusted annually); provided, however, that the Parent Company may not take monies from Deer Valley and loan or advance those monies back to Deer Valley. (d) An annual audit and associated quarterly reviews fee of $30,000 per manufacturing plant per year shall be expensed to Deer Valley; and (e) The Net Income Before Taxes of any additional plants or facilities acquired or added by Deer Valley shall be included in the Net Income Before Taxes (an "Additional Plant"); provided, however, the costs of financing the ----------------- acquisition of each Additional Plant (including dividends paid on preferred stock), and expenses related to the operation of such Additional Plant, shall reduce the Net Income Before Taxes.

Manner of Computation. For purposes of this Agreement, ‘‘EBITDA’’ "Pre-Tax ---------------------- Income" of the Ac- quired Business Ash for any fiscal year each of Year One, Year Two and Year Three shall mean its Ash's aggregate earnings net of losses from operations before interest, taxes, depreciation and amortizationoperations, calculated as if it were being op- erated operated as a separate and independent corporation, after deduction of all appropriate expenses, charges, and reserves, but before adjustment for federal, state, and local income or franchise taxes. EBITDA Pre-Tax Income shall be determined in accordance with generally accepted accounting principles (GAAP") as consis- tently consistently applied by Seller as determined by NFLI after consultation with the firm of independent certified public accountants engaged by Buyer NFLI for purposes of its own audit (‘‘Buyer’s Account- ants’’"NFLI's Accountants"). In ; provided, however, that in determining such EBITDAPre-Tax Income: (a) EBITDA Pre-Tax Income shall be computed without regard to ‘‘"extraordinary items’’ " of gain or loss as that term shall be defined in GAAP; (b) EBITDA Pre-Tax Income shall not include any gains, losses or profits realized from the sale of any assets other than in the ordinary course of business; (c) No deduction shall be made for any management fees, general overhead expenses or other intercompany or divisional charges, of whatever kind or nature, charged by Buyer NFLI to the Acquired BusinessAsh, except that Buyer (i) for a fixed charge of $10,000 per month and (ii) NFLI may charge interest on any loans or advances made by Buyer NFLI to the Acquired Business Ash or to BPI in connection with its the business operations of Ash at a rate of 9%; (d) No deduction shall be made for legal or accounting fees and expenses aris- ing arising out of this Agreement or the Purchase Merger Agreement; (e) The purchase and sales prices of goods and services sold by the Acquired Business Ash to Buyer NFLI or its affiliates or purchased by the Acquired Business Ash from Buyer NFLI or its affiliates shall be adjusted to reflect the amounts that the Acquired Business Ash would have realized or paid if dealing with an indepen- dent independent party in an arm’s-arm's length commercial transaction; however, it is understood that NFLI or its affiliates may offer special arrangements to Ash. Any such arrangements which modify this Agreement shall be in writing and signed by both NFLI and either or both Xxxxx X. Xxxxxx or Xxxx Xxxxxx; and (f) Depreciation and amortization of assets acquired from Ash shall be computed under the straight-line method, using the carrying value of depreciable assets less applicable reserves, as shown on the books and records of Ash, and the useful lives for such assets, or categories thereof as though the merger of Ash and NFLI had not been effected.

Manner of Computation. For purposes of this Agreement, ‘‘EBITDA’’ "Pre-Tax Income" of the Ac- quired Business for any fiscal year ANIP shall mean its mean, ANIP's aggregate earnings from net of losses of operations before interest, taxes, depreciation and amortization, calculated as if it ANIP were being op- erated operated as a separate separate, unaffiliated corporation, after deduction of all appropriate expenses, charges and independent corporationreserves, but before adjustment for federal, state, and local income or franchise taxes. EBITDA Pre-Tax Income shall be determined in accordance with generally accepted accounting principles ("GAAP") as consis- tently consistently applied by Seller as determined by ANII after consultation with the firm of independent certified public accountants engaged by Buyer ANII for purposes of its own audit (‘‘Buyer’s Account- ants’’"ANII's Accountants"). In ; provided, however, that in determining such EBITDAPre-Tax Income: (a) EBITDA Pre-Tax Income shall be computed without regard to ‘‘"extraordinary items’’ " of gain or loss as that term shall be defined in GAAP; (b) EBITDA Pre-Tax Income shall not include any gains, losses or profits realized from the sale of any assets other than in the ordinary course of business; (c) No deduction shall be made for any management fees, fees or general overhead expenses of ANII or other intercompany charges, of whatever kind or nature, charged by Buyer ANII to the Acquired BusinessANIP, except that Buyer (i) ANII may deduct any expenses that are directly attributable to the operations of ANIP, including, without limitation, insurance policy premiums, and (ii) ANII may charge interest on any loans or advances made by Buyer ANII to the Acquired Business ANIP in connection with its ANIP's business operations at a rate of nine percent (9%); (d) No deduction shall be made for legal or accounting fees and expenses aris- ing arising out of this Agreement or to the Purchase Agreementextent that such fees and expenses are included as an expense for the applicable fiscal year; (e) The purchase No deduction shall be made for salaries or special benefits (including club dues, special car allowances and sales prices other similar benefits) paid to Al Sirkin ; (f) Pre-Tax Income shall include all itexx xx xxxerest expense or other expense, but shall not include any interest expense (i) related to any indebtedness not incurred in connection with the acquisition of goods and services sold ASH Corp., or any other businesses acquired for the benefit of ANIP's operations, or (ii) that would have been eliminated from operating cash income generated by the Acquired Business business operations of ANIP, but for the allocation of such operating cash income by ANII for other purposes; (g) Pre-Tax Income shall include 15% of any revenues actually received by ANII's subsidiary, Bactolac Pharmaceutical Inc., at its operations facility located in Hauppauge, New York resulting from orders received from customers referred by York Pharmaceuticals Incorporated, or York Pharmaceuticals Incorporated's former employees to Buyer or Bactolac; provided that Bactolac shall have the right, in its affiliates or purchased sole and absolute discretion, to determine whether to sell its products to such parties referred by the Acquired Business from Buyer or its affiliates shall be adjusted to reflect the amounts that the Acquired Business would have realized or paid if dealing with an indepen- dent party in an arm’s-length commercial transaction.them;

Manner of Computation. For purposes of this Agreement, ‘‘EBITDA’’ "Pre-Tax ---------------------- Income" of the Ac- quired Business BPI for any fiscal year each of Year One, Year Two and Year Three shall mean its BPI's aggregate earnings net of losses from operations before interest, taxes, depreciation and amortizationoperations, calculated as if it were being op- erated operated as a separate and independent corporation, after deduction of all appropriate expenses, charges, and reserves, but before adjustment for federal, state, and local income or franchise taxes. EBITDA Pre-Tax Income shall be determined in accordance with generally accepted accounting principles (GAAP") as consis- tently consistently applied by Seller as determined by NFLI after consultation with the firm of independent certified public accountants engaged by Buyer NFLI for purposes of its own audit (‘‘Buyer’s Account- ants’’"NFLI's Accountants"). In ; provided, however, that in determining such EBITDAPre-Tax Income: (a) EBITDA Pre-Tax Income shall be computed without regard to ‘‘"extraordinary items’’ " of gain or loss as that term shall be defined in GAAP; (b) EBITDA Pre-Tax Income shall not include any gains, losses or profits realized from the sale of any assets other than in the ordinary course of business; (c) No deduction shall be made for any management fees, general overhead expenses or other intercompany charges, of whatever kind or nature, charged by Buyer NFLI to the Acquired BusinessBPI, except that Buyer NFLI may charge interest on any loans or advances made by Buyer NFLI to the Acquired Business BPI in connection with its business operations at a rate of 9%; (d) No deduction shall be made for legal or accounting fees and expenses aris- ing arising out of this Agreement or the Purchase Merger Agreement; (e) The purchase and sales prices of goods and services sold by the Acquired Business BPI to Buyer NFLI or its affiliates or purchased by the Acquired Business BPI from Buyer NFLI or its affiliates shall be adjusted to reflect the amounts that the Acquired Business BPI would have realized or paid if dealing with an indepen- dent independent party in an arm’s-arm's length commercial transaction; however, it is understood that NFLI or its affiliates may offer special arrangements to BPI. Any such arrangements which modify this Agreement shall be in writing and signed by both NFLI and Reddy; and (f) Depreciation and amortization of assets acquired from BPI shall be computed under the straight-line method, using the carrying value of depreciable assets less applicable reserves, as shown on the books and records of BPI, and the useful lives for such assets, or categories thereof as though the merger of BPI and NFLI had not been effected.