Common use of EBITDA Adjustment Clause in Contracts

EBITDA Adjustment. (a) The number of Shares in escrow shall first be adjusted in accordance with this Section 2.2 based upon Purchaser's Adjusted EBITDA (as defined below) determined by Parent's public accounting firm, which shall be of nationally recognized reputation (the "Accountants"). The parties to this Agreement agree that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is such a firm and is acceptable to each of them. (▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall not be deemed to be an arbitrator, however, and the determination of Adjusted EBITDA as provided in this Section 2.2 shall be subject to arbitration as provided in this Agreement.) Not later than February 28, 1999, the Accountants shall complete their audit of the financial statements of Purchaser for the period from the Closing Date through December 31, 1998. As a part of their audit the Accountants shall determine "Adjusted EBITDA," which shall mean EBITDA (as defined below), adjusted as follows: EBITDA shall be annualized by dividing EBITDA by the number of days in the period from the Closing Date through December 31, 1998, then multiplying the result by 365. Adjusted EBITDA is equal to annualized EBITDA multiplied by six (6), minus the sum of: (i) the Net Cash (as defined below) provided to Purchaser by Parent or its affiliates through December 31, 1998; (ii) fifty percent (50%) of the amount of annualized EBITDA derived from sales by Purchaser to Genesis Direct, Inc. and Control Group, Ltd. and their customers who are not already customers of Seller on the Closing Date or listed in Schedule 2.2(a) to this Agreement; -------------- (iii) The excess liability, if any, as of the Closing Date for postage collected by Seller from customers but not expended on behalf of customers over the sum of funds held in escrow or otherwise segregated to pay postage for customers (provided that such liability shall not be taken into account in calculating EBITDA given that it is being deducted here in the calculation of Adjusted EBITDA); and (iv) all legal fees and disbursements owed to The Hishon Firm, LLC for legal services related to the Indemnified Tax Claim that were provided during the period beginning on the Closing Date and ending on December 31, 1998.

EBITDA Adjustment. (a) The number of Shares As promptly as possible, and in escrow any event within sixty (60) days after August 1, 2008 or the Closing Date, whichever is later, Buyer shall first deliver to Sellers a statement from Buyer’s accountants showing the EBITDA for the Company for the fiscal year ended July 31, 2008 (the “Actual EBITDA”) and showing the amount by which the Actual EBITDA is greater than or less than the amount shown on Schedule 2.2. (b) If the Actual EBITDA is equal or greater than the amount shown on Schedule 2.2, then the Buyer and Sellers shall cause the EBITDA Escrow Amount, with accrued interest, to be adjusted released to Sellers according to Schedule 2.2. (c) If the Actual EBITDA is less than the amount shown on Schedule 2.2 (the amount by which Actual EBITDA is less than the amount shown on Schedule 2.2 referred to as the “EBITDA Shortfall”), then Sellers, subject to any dispute in accordance with this Section 2.2 based upon Purchaser's Adjusted 2.8, shall promptly, but in no event later than five (5) business days after the delivery of the statement, pay to Buyer, either in cash or by release of some or all of the EBITDA (as defined below) determined by Parent's public accounting firmEscrow Amount, which an amount equal to the EBITDA Shortfall, provided that to the extent the EBITDA Escrow Amount held under the Escrow Agreement does not satisfy in full such amount of any EBITDA Shortfall, then the Sellers shall be responsible, solidarily, all benefits of nationally recognized reputation (division and discussion being hereby expressly waived, to the "Accountants")Buyer for such EBITDA Shortfall owing to the Buyer. The parties To the extent there is any amount of the EBITDA Escrow Amount remaining after any such payment of EBITDA Shortfall to this Agreement agree that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is the Buyer, then the balance of such a firm and is acceptable to each of them. (▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall not be deemed to be an arbitrator, however, and the determination of Adjusted EBITDA as provided in this Section 2.2 amount shall be subject distributed to arbitration as provided in this Agreement.) Not later than February 28, 1999, the Accountants shall complete their audit of Sellers pro rata to the financial statements of Purchaser for the period from the Closing Date through December 31, 1998. As a part of their audit the Accountants shall determine "Adjusted EBITDA," which shall mean EBITDA (as defined below), adjusted as follows: EBITDA shall be annualized by dividing EBITDA by the number of days in the period from the Closing Date through December 31, 1998, then multiplying the result by 365. Adjusted EBITDA is equal to annualized EBITDA multiplied by six (6), minus the sum of: (i) the Net Cash (as defined below) provided to Purchaser by Parent or its affiliates through December 31, 1998; (ii) fifty percent (50%) of the amount of annualized EBITDA derived from sales by Purchaser to Genesis Direct, Inc. and Control Group, Ltd. and their customers who are not already customers of Seller on the Closing Date or listed distribution ratios set out in Schedule 2.2(a) to this Agreement; -------------- (iii) The excess liability, if any, as of the Closing Date for postage collected by Seller from customers but not expended on behalf of customers over the sum of funds held in escrow or otherwise segregated to pay postage for customers (provided that such liability shall not be taken into account in calculating EBITDA given that it is being deducted here in the calculation of Adjusted EBITDA); and (iv) all legal fees and disbursements owed to The Hishon Firm, LLC for legal services related to the Indemnified Tax Claim that were provided during the period beginning on the Closing Date and ending on December 31, 19982.2.