Determination of EBITDA Sample Clauses
The Determination of EBITDA clause defines how Earnings Before Interest, Taxes, Depreciation, and Amortization (EBITDA) is calculated for the purposes of the agreement. It typically outlines the specific accounting methods, adjustments, and time periods to be used in the calculation, and may specify which items are to be included or excluded, such as non-recurring expenses or income. This clause ensures that both parties have a clear and consistent understanding of EBITDA, reducing the risk of disputes over financial metrics that may impact payments, covenants, or performance targets.
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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, after Closing, the Surviving Corporation) 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 the Surviving Corporation at the end of the Determination Year (the "SCC Accountant") in accordance with generally
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. (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. Company's EBITDA for the fiscal year ending February 28, 1997, and any resulting EBITA Adjustment, shall be determined by Company's independent certified public accountants at least ten (10) days prior to the Closing Date (the "EBITDA DETERMINATION"). Immediately after receiving the EBITDA Determination, Company shall deliver same to the Parent. The Parent and its accountants shall be given full access upon request to all work papers or other materials used by the Company and its accountants in the preparation of the EBITDA Determination. If the Parent does not deliver a list of written objections to the EBITDA Determination ("OBJECTION NOTICE") to Company and the Shareholders within ten (10) days following delivery to the Parent, the EBITDA Determination shall become final and binding upon the parties. If the Parent delivers an Objection Notice within such ten (10) day period, the parties will endeavor to reconcile any differences and agree upon a final EBITDA Determination. If the parties are unable to agree upon a final EBITDA Determination within five (5) days following delivery of the Objection Notice, at the request of either party the outstanding matters shall be submitted for resolution by a mutually acceptable accounting firm of recognized national standing with offices in the Atlanta, Georgia area. If the parties are unable to agree upon a mutually acceptable accounting firm, one will be selected at random from a list of the six (6) largest Atlanta offices of such certified public accounting firms having no prior affiliation with Parent, Company, the Surviving Corporation or the Shareholders. Each of Parent and the Shareholders shall bear 50% of the fees and expenses of the accounting firm so selected. Such accounting firm shall promptly prepare a final EBITDA Determination and the determination of such accounting firm shall be final and binding upon the parties. Notwithstanding anything contained in this Agreement to the contrary, the Closing will be postponed until such time as the EBITDA Determination is finally determined in accordance with this Section 1.7(c).
Determination of EBITDA. EBITDA for each of the first three calendar months of 2005, including any applicable EBITDA Add-Backs for such month, shall be determined in good faith by Parent. The Company Stockholders Representatives shall be entitled to designate a representative to participate with Parent in the determination of the EBITDA for such calendar months, including any applicable EBITDA Add-Backs for such month. Parent shall deliver written notice of its determination of the EBITDA, and any applicable EBITDA Add-Backs, for a month to the Company Stockholders Representatives by the tenth calendar day after the end of such month (or, for the month of January, by the fifteenth calendar day after the end of such month), or as promptly practicable thereafter, which notice shall provide in reasonable detail the basis of its determination. To the extent the Company Stockholders Representatives disagree with the determination of such amounts or the amount of any DISA Recoverables, the Company Stockholders Representatives shall negotiate in good faith with Parent to resolve their disagreements. If such disagreements have not been resolved by the fifth day after delivery of the written notice from Parent, then the disagreements shall be resolved by the Chicago office of Deloitte & Touche by the 20th day after delivery of Parent’s written notice of its determination. Such resolution by Deloitte & Touche shall be final and binding on all the parities. No issue, or substantially similar issue, which has been resolved by Deloitte & Touche in connection with the determination of EBITDA, including EBITDA Add-Backs, with respect to a month shall be the basis for a disagreement with Parent’s determination of EBITDA, including EBITDA Add-Backs, in any subsequent month. The fees and expenses of Deloitte & Touche shall be paid by Parent.
Determination of EBITDA. Foodbrands shall cause the Company to furnish to the Sellers financial statements of the Company for FFY 1996, FFY 1997 and FFY 1998 as promptly as they are available and in any event prior to March 15th following each such fiscal year. The financial statements shall consist of a balance sheet and income statement and shall be prepared in accordance with Section 2.07, 2.08 and 2.09 below. Each year's financial statements shall be accompanied by calculations of the Company's EBITDA for the year calculated in accordance with Section 2.07. Sellers shall have ten (10) days from receipt of the financial statements of the Company and the calculation of EBITDA in which to object to the calculation of EBITDA by providing written notice to the Company and Foodbrands of its objection to such calculation. The resolution of any dispute regarding the calculation of EBITDA shall be resolved by the accounting firm of Ernst & Young (Fort Worth), whose decision shall be final. The costs associated with such determination shall be charged against the nonprevailing party. If the calculation of the Company's EBITDA indicates that a portion of the Contingent Purchase Price is earned pursuant to Section 2.05(a), the financial statements shall be accompanied by an "Election Notice" in substantially the form of Exhibit C (with such modifications contemplated by subsection (d) below).
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 ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇ 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. 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. 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,