Common use of Determination of EBITDA Clause in Contracts

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 this Agreement (I.E., not on the basis of an independent review). The determination of EBITDA shall become final and binding on the parties on the date the Accounting Firm delivers its final resolution in writing to the parties (which final resolution shall be delivered not more than 30 days following submission of such disputed matters). The fees and expenses of the Accounting Firm shall be shared equally by the Sellers, on the one hand, and the Companies, on the other hand.

Determination of EBITDA. Within 60 forty five (45) days after the last day end of any of the Earnout EBITDA Earn-Out Payment periods set forth in Section 2.3 (a) through (f) above (each an “EBITDA Earn-Out Period” and collectively the “EBITDA Earn-Out Periods”), Buyer and its auditors shall conduct a review of Buyer’s financial statements as of the Buyers will end of the then-relevant Earn-Out Period and shall prepare and deliver to Seller (or Seller’s appointed representative, as the Seller Representative case may be) a statement computation of EBITDA earned by the Canadian Business for such Earn-Out Period (the "“EBITDA STATEMENT"Earn-Out Notice”). EBITDA shall be determined in accordance with GAAP as determined by Buyer and its auditors in their sole discretion. If Seller disagrees with the computation of EBITDA earned by the Canadian Business with respect to any EBITDA Earn-Out Period, Seller may, within ten (10) that sets days after receipt of the EBITDA Earn-Out Notice, deliver a notice (an “EBITDA Earn-Out Objection Notice”) to Buyer setting forth Seller’s calculation of EBITDA earned by the Canadian Business for such Earn-Out Period. If Seller does not deliver an Earn-Out Objection Notice within such ten (10) day period, then EBITDA for the Earnout Earn-Out Period shall be deemed finally determined to be as set forth in the EBITDA Earn-Out Notice. Buyer and Seller (each a “Party” and collectively the “Parties” for purposes of this Section 2.4 only) agree to use reasonable best efforts to resolve any disagreements as to the computation of EBITDA for any particular Earn-Out Period, but if they do not obtain a final resolution within thirty (30) days after Buyer has received the Earn-Out Objection Notice, the Parties shall jointly retain an independent accounting firm of recognized national standing to resolve any remaining disagreements (the “Firm”). The Seller Representative Parties shall direct the Firm to render a determination within thirty (30) days after its retention and the Parties agree to cooperate as reasonably requested by Buyers in connection with the preparation of the foregoingFirm during its engagement. The Seller Representative may dispute Firm will consider only those items and amounts in the calculation of EBITDA set forth on an EBITDA Statement earned 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 Canadian Business set forth in this Agreement. During the 30 days following delivery of a EBITDA Earn-Out Objection Notice of Disagreement, which 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 Parties are unable to mutually agree on an Accounting Firm, the Seller Representative and Buyers resolve. The Parties shall select a "big-five" Accounting Firm by lot (after excluding Ernst & Young, LLP and the Companies' accountants prior each make written submissions to the ClosingFirm promptly (and, in any event, within thirty (30) days after the Firm’s engagement), which submissions shall contain such Party’s computation of EBITDA earned by the Canadian Business for the Earn-Out Period and information, arguments, and support for its position. The parties will cooperate with the Accounting Firm during the term of shall review such submissions and base its engagementdetermination solely on them. In resolving any matters in disputedisputed item, the Accounting Firm may not assign a value to any item in dispute greater than the greatest value for such item assigned claimed by Buyers, on the one hand, or the Seller Representative, on the other hand, either Party or less than the smallest value for such item assigned claimed by Buyers, on the one hand, or the Seller Representative, on the other handeither Party. The Accounting Firm's ’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 this Agreement (I.E., not on the basis definition of an independent review)EBITDA included herein. The determination of EBITDA earned by the Canadian Business for a particular period made by the Firm shall become final be binding and binding conclusive on the parties on hereto for all purposes under this Agreement (the date the Accounting Firm delivers its final resolution in writing to the parties (which final resolution shall be delivered not more than 30 days following submission of such disputed matters“Final EBITDA Determination”). The All fees and expenses of the Accounting Firm shall be shared equally paid by the Sellersparty that proposed the EBITDA earned by the Canadian Business furthest from the Final EBITDA Determination. If the Final EBITDA Determination is exactly half way between the figure for EBITDA earned by the Canadian Business proposed by each of Buyer and Seller, on then Buyer and Seller shall pay equal amounts of the one hand, and the Companies, on the other handFirm’s fees.