Determination of Fair Value Clause Samples

Determination of Fair Value. Where proceedings are not dismissed, the appraisal proceeding will be conducted in accordance with the rules of the Court of Chancery, including any rules specifically governing appraisal proceedings. Through such proceeding, the Delaware Court of Chancery will determine the ‘‘fair value’’ of the shares of Company Common Stock, exclusive of any element of value arising from the accomplishment or expectation of the Merger, together with interest, if any, to be paid upon the amount determined to be the fair value. In determining fair value, the Delaware Court of Chancery will take into account all relevant factors. Unless the court in its discretion determines otherwise for good cause shown, interest from the Effective Time through the date of payment of the judgment will be compounded quarterly and will accrue at 5% over the Federal Reserve discount rate (including any surcharge) as established from time to time during the period between the Effective Time and the date of payment of the judgment. However, the Surviving Corporation has the right, at any point prior to the Delaware Court of Chancery’s entry of judgment in the proceedings, to make a voluntary cash payment to each stockholder seeking appraisal. If the Surviving Corporation makes a voluntary cash payment pursuant to subsection (h) of Section 262, interest will accrue thereafter only on the sum of (1) the difference, if any, between the amount paid by the Surviving Corporation in such voluntary cash payment and the fair value of the shares as determined by the Delaware Court of Chancery and (2) interest accrued before such voluntary cash payment, unless paid at that time. In ▇▇▇▇▇▇▇▇▇▇ v. UOP, Inc., the Supreme Court of Delaware discussed the factors that could be considered in determining fair value in an appraisal proceeding, stating that ‘‘proof of value by any techniques or methods which are generally considered acceptable in the financial community and otherwise admissible in court’’ should be considered, and that ‘‘[f]air price obviously requires consideration of all relevant factors involving the value of a company.’’ The Delaware Supreme Court stated that, in making this determination of fair value, the court must consider market value, asset value, dividends, earnings prospects, the nature of the enterprise and any other facts that could be ascertained as of the date of the merger that throw any light on future prospects of the merged corporation. Section 262 provides that fair value is ...

Determination of Fair Value. The Fair Value of the --------------------------- Membership Interest of Chu or ▇▇▇▇▇▇▇▇▇ for purposes hereof shall be determined as follows. (a) During the first eighteen (18) months after the date hereof, the Fair Value shall be determined by multiplying the Profit Percentage Interest of Chu or ▇▇▇▇▇▇▇▇▇ as applicable by the total Capital Contributions to the Company of all of the Members from its inception to the date of the purchase of such interest. (b) From and after the date that is eighteen (18) months after the date hereof, the Fair Value shall mean the price that an unaffiliated third party would be willing to pay for the Membership Interest of Chu or ▇▇▇▇▇▇▇▇▇, as applicable (the "Acquired Interest"), considering the value of the Company's business and assets at the time and its liabilities (with no minority discount applied). HPC and ▇▇▇▇▇▇▇▇▇ or Chu, as applicable, shall attempt to agree on the Fair Value during the sixty (60) day period after the notification by HPC, on the one hand, or Chu or ▇▇▇▇▇▇▇▇▇, on the other, of its election to purchase or sell the Acquired Interest pursuant to Section 7.9.1 or 7.

Determination of Fair Value. The repurchase price payable by the Company upon exercise of the Put Right or the Call Right shall be equal to the fair market value of the purchased Class A Units as determined in accordance with this Section 11.3. (a) In the event that (x) the Company desires to exercise the Call Right or (y) the Executive has informed the Company of its desire to exercise the Put Right, the Company shall provide the Executive with a notice (a “Repurchase Notice”) relating to such exercise no later than ten (10) business days prior to the date on which the repurchase of Class A Units is scheduled to take place. The Repurchase Notice shall, for the avoidance of doubt, include the number of Class A Units to be repurchased and the Fair Value of such Class A Units as determined in accordance with the Amended and Restated Limited Liability Company Agreement of Holdings, dated as of the date hereof, by and among Holdings, the Executive and the other parties thereto (the “LLC Agreement”). (b) If the Executive has an objection to the Fair Value as determined by the Board, the Executive shall deliver to the Company a statement setting forth his objection (an “Objection Statement”). If an Objection Statement is not delivered to the Company within fifteen (15) business days after delivery of the Repurchase Notice, the Fair Value as determined by the Board and reflected in the Repurchase Notice shall be final and binding on the Company and the Executive. (c) In the event that the Executive delivers an Objection Statement, the Executive and the Company shall negotiate in good faith to resolve such dispute. If the Executive and the Company are unable to agree on the Fair Value within two (2) business days, the Company shall engage an investment bank or valuation firm with relevant experience to determine the Fair Value of the Class A Units at issue reasonably acceptable to the Company and the Executive; provided, however, that if the Executive and the Company are unable to agree on an investment bank or valuation firm within three (3) business days, the Company and the Member shall each engage an investment bank (neither of which shall have had a material business relationship with the Company in the twelve (12) month period prior to the date of such selection) and the two selected investment banks shall select a third investment bank (which shall not have had a material business relationship with the Company, the ACON Investor (as defined in the LLC Agreement) or any of their respect...

Determination of Fair Value. For purposes of this Section 4, fair market value of a Share and of a Converted Warrant Share as of a particular date shall be determined as follows: (a) if such Share is then quoted on The American Stock Exchange, any other national securities exchange, Nasdaq, or the OTC Bulletin Board, the simple average of the closing sales prices as reported on such exchange or market for the ten (10) consecutive trading days prior to such date; (b) if such share is publicly traded but is not quoted on The American Stock Exchange, any other national securities exchange, Nasdaq nor the OTC Bulletin Board, the value shall be the fair market value thereof, as determined in good faith by the Board of Directors of the Company.

Determination of Fair Value. The “Fair Value” of a Membership Interest shall be the amount that would be distributable to the Member holding such interest in the event that the assets of the Company were sold for cash and the proceeds, net of liabilities, were distributed to the holders of all Membership Interests pursuant to this Agreement. In the event that the Fair Value of a Membership Interest is to be determined under this Agreement, the Managers shall select a qualified independent appraiser to make such determination, and the Managers shall make the books and records available to the appraiser for such purpose. The determination of Fair Value made by such appraiser shall be final, conclusive, and binding on the Company, all Members, and all Assignees of a Membership Interest.

Determination of Fair Value. For purposes of Section 10.3, the “Fair Value” of the Bankrupt Member’s Interest shall be the amount such Member would receive if the assets of the Company were sold for their fair market value, the Company’s liabilities were paid in full, gain or loss from the sale was allocated in accordance with the applicable terms of this Agreement, and the sales proceeds were distributed in accordance with the applicable terms of this Agreement. For purposes of this Section 10.4, the “Fair Value” of the Company shall be determined, as of the effective date of the applicable Event of Bankruptcy, by the average of two independent appraisals conducted by state certified appraisers, with the first appraiser chosen by the purchasing Member(s), and the other to be chosen by the Bankrupt Member or its personal representative, as the case may be, within fifteen (15) days after the effective date of notice of the appointment of the first appraiser, provided that if the Bankrupt Member or its personal representative, as the case may be, fails to timely appoint the second appraiser, then the determination of the first appraiser of the Fair Value of the Company shall be binding on all interested Persons. In the event the Non-Bankrupt Member should exercise the option provided in Section 10.1 hereof, the Non-Bankrupt Member shall receive a credit towards the Fair Value of the Bankrupt Member’s Interest in the amount of the cost of such appraisal(s).

Determination of Fair Value. 16 11. Terms and Consequences of Transfers of Shares...................... 17 12.

Determination of Fair Value. (a) Determination by experts (i) If within 10 business days after the date on which a transfer notice or deemed transfer notice is given (the notice date), the shareholders cannot agree on the fair value of the shares to be transferred, an expert nominated by the board by ordinary resolution must be appointed to determine the fair value of the shares to be transferred. If an expert has not been nominated by the board within 20 business days of the notice date, the secretary of the Company must request the nomination of an expert by the president of the institute of chartered accountants within 30 business days of the notice date. Their decision will be final and binding on the parties. (ii) The fair value of the shares will be the value determined by the expert. (iii) The fair value of the relevant shares will be determined as at the date on which the transfer notice or deemed transfer notice is given, and the expert must determine the fair value of the relevant shares within 30 business days of the date of their appointment, and must provide a copy of their valuation to each shareholder. (iv) The expert so appointed may appoint a recognised, experienced and qualified valuer to determine the value of any particular asset of the Company. (b) Matters to which the expert shall have regard (i) In making their determination will value the business as a going concern and, having regard to the appropriate proportion of the business represented by the shares being valued in their discretion, apply a discount for minority holdings; (ii) Will have regard to the following factors, in addition to any other factors which they believe should properly be taken into account, based on the best information available at the time: (1) The prospects of the business, including, without limitation, taking into account the continuing association or involvement of any of the principals with the Company and its subsidiaries; (2) The value, at a specified capitalisation rate appropriate to the business, of the estimated future maintainable earnings of the Company; (3) The yield which an open-market investor would reasonably require in an acquisition of the shares; (4) The net tangible assets of the Company as disclosed in the accounts for the last preceding financial year or, if no accounts of the Company are available, as disclosed in the latest management accounts of the Company; (5) In making their determination will act as an expert and not as an arbitrator; and (6) Their determ...

Determination of Fair Value. 17.1. Where the Fair Value of Shares and Loan Accounts, or the price of such Shares and Loan Accounts, or any Blyvoor Equity Interest Amount, as applicable, is required to be determined for any purpose under and in terms of this Agreement including, in terms of clause 11.2.1 as the such Fair Value, price or “Blyvoor Equity Interest Amount”, as applicable, shall be: (a) the amount agreed to between the relevant Parties within 10 (ten) Business Days of the date on which a Party requests a determination of such amount or, failing agreement, (b) the amount determined by the auditors of the Company, or such other independent expert as may be appointed in terms of clause 17.2 (the “Expert”).