Common use of Determined Value Clause in Contracts

Determined Value. The provisions of this Section 5 shall apply to the extent that a determination of the Determined Value of Put Securities or Called Securities is required to ascertain the Fair Market Value thereof. For purposes of this Agreement, “Determined Value” shall be the value, determined separately with respect to each class of securities comprising Put Securities or Called Securities, of one share or unit of such class of securities as of the date of the Put Right Exercise Notice or the Call Right Exercise Notice, as applicable, as determined pursuant to this Section 5; provided that if the Put Securities or Called Securities are denominated in dollars rather than in shares or other units, then the Determined Value shall be stated as a percentage of the face amount thereof (which percentage may be greater than, equal to or less than 100% to reflect any premium or discount to such face amount). The Company and Purchaser, within thirty (30) days after the date of the Put Right Exercise Notice or the Call Right Exercise Notice (the “Selection Deadline”), shall each select a nationally recognized appraisal firm (a “Qualified Firm”) and give written notice to the other party of such selection. If either party fails to select, and give notice of, a Qualified Firm prior to the Selection Deadline, such party shall be deemed to have agreed to the other party’s selection of a Qualified Firm and the appraisal of the value of the Put Securities or Called Securities, as applicable, by such selected Qualified Firm shall be the Determined Value and shall be conclusive and binding on [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. the parties. If each party has timely selected a Qualified Firm, then each of the two selected Qualified Firms shall conduct an appraisal of the value of the Put Securities or Called Securities, as applicable, and the parties shall arrange for the Qualified Firms to deliver their appraisals to each party simultaneously. If the higher of the two appraisals with respect to any class of Put Securities or Called Securities (the “Higher Appraisal”) is equal to or is less than one hundred ten percent (110%) of the lower of the two appraisals with respect to such class of Put Securities or Called Securities (“Lower Appraisal”), the average of the Lower Appraisal and the Higher Appraisal shall be the Determined Value with respect to such class of Put Securities or Called Securities and shall be deemed conclusive and binding upon the parties. If the Higher Appraisal is more than one hundred ten percent (110%) of the Lower Appraisal, the parties shall select a third mutually agreed-upon Qualified Firm (“Third Firm”). If the parties are unable to agree upon a Third Firm within thirty (30) days after the first two appraisals have been provided to the parties, the two Qualified Firms shall select the Third Firm. The Third Firm shall conduct an appraisal of the value of the Put Securities or Called Securities, as applicable, with respect to which the higher appraisal was more than one hundred ten percent (110%) of the Lower Appraisal (the “Third Appraisal”). The relative differences between the Higher Appraisal, the Lower Appraisal and the Third Appraisal shall be calculated and the two appraisals with the smallest relative difference shall be identified. The average of the two such identified appraisals shall be the Determined Value with respect to such Put Securities or Called Securities for which such Third Appraisal was required and shall be deemed conclusive and binding on the parties. All determination of the value of Put Securities or Called Securities, as applicable, shall be determined with appropriate discounts attributable to minority ownership and lack of marketability and shall take into account all unpaid dividends or interest, if any, accrued thereon. In conducting their appraisals, the Qualified Firms appointed hereunder shall consider all relevant evidence and information submitted to them, and all such evidence submitted by the parties shall be provided to each Qualified Firm. The Company shall cooperate with and provide all information reasonably requested by a Qualified Firm, subject to the execution by each selected Qualified Firm of a non-disclosure agreement in form and substance reasonably satisfactory to the Company. The determination of the value of the Put Securities or Called Securities, as applicable, by each Qualified Firm shall be set forth in writing, together with an explanation of the considerations upon which its appraisal is based (subject to any non-disclosure obligations), with a signed counterpart delivered simultaneously to the Company and Purchaser not later than sixty (60) days after selection of the last of the Qualified Firms. Purchaser acknowledges and agrees that all appraisals constitute confidential information of the Company that is subject to all existing obligations of Purchaser with respect to confidential information of the Company. The Company shall bear the fees and expenses of all Qualified Firms selected under this Section 5.

Determined Value. The provisions of (a) Whenever this Section 5 shall apply to Agreement requires the extent that a determination “Determined Value” of the Determined Value of Put Securities or Called Securities is required Company to ascertain the Fair Market Value thereof. For purposes of this Agreementbe determined, said “Determined Value” shall be an amount agreed to by the value, determined separately with respect to each class of securities comprising Put Securities or Called Securities, of one share or unit of such class of securities as purchasers (the “Purchasers”) and the sellers (the “Sellers”) of the date applicable Units to be the fair market value of the Put Right Exercise Notice or Company. (b) In the Call Right Exercise Notice, as applicable, as determined pursuant to this Section 5; provided event that if the Put Securities or Called Securities are denominated in dollars rather than in shares or other units, then Purchasers and the Sellers cannot agree upon the Determined Value shall be stated as a percentage of the face amount thereof (which percentage may be greater than, equal to or less than 100% to reflect any premium or discount to such face amount). The Company and Purchaser, within thirty (30) days after written demand by the date of Purchasers to the Put Right Exercise Notice Sellers or by the Call Right Exercise Notice (Sellers to the “Selection Deadline”)Purchasers, the Purchasers and Sellers shall each select appoint a nationally recognized appraisal firm qualified independent business appraiser, which appraisers shall each establish, within forty-five (a “Qualified Firm”45) and give written notice to days after their respective appointments, the other party of such selection. If either party fails to select, and give notice of, a Qualified Firm prior to the Selection Deadline, such party shall be deemed to have agreed to the other party’s selection of a Qualified Firm and the appraisal of the fair market value of the Put Securities or Called Securities, as applicable, by such selected Qualified Firm shall be the Determined Value Company in accordance with recognized methods of business valuation and shall be conclusive and binding on [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect give prompt written notice thereof to the omitted portions. the parties. If each party has timely selected a Qualified Firm, then each of the two selected Qualified Firms shall conduct an appraisal of the value of the Put Securities or Called Securities, as applicable, Purchasers and the parties shall arrange for the Qualified Firms to deliver their appraisals to each party simultaneouslySellers. If the higher of the two appraisals with respect to any class of Put Securities or Called Securities appraised values (the “Higher Appraisal”) is equal to or is less than one hundred ten percent (110%) of exceeds the lower of the two appraisals with respect to such class of Put Securities or Called Securities appraised values (“Lower Appraisal”)) by ten percent (10%) or less, the Determined Value shall be the average of the Lower Higher Appraisal and the Higher Appraisal shall be the Determined Value with respect to such class of Put Securities or Called Securities and shall be deemed conclusive and binding upon the parties. Lower Appraisal. (c) If the Higher Appraisal is exceeds the Lower Appraisal by more than one hundred ten percent (11010%), the two appraisers shall select a third qualified independent business appraiser (“Neutral Appraiser”), which Neutral Appraiser shall establish, within forty-five (45) days after its appointment, the fair market value (“Neutral Appraisal”) for the Company in accordance with recognized methods of business valuation and shall give prompt notice thereof to the Purchasers and the Sellers. If the Neutral Appraisal is equal to or greater than the Higher Appraisal, the Determined Value shall be the Higher Appraisal, if the Neutral Appraisal is equal to or less than the Lower Appraisal, the Determined Value shall be the Lower Appraisal, and if the Neutral Appraisal is between the Higher Appraisal and the Lower Appraisal, the Determined Value shall be the Neutral Appraisal. (d) The parties shall select a third mutually agreed-upon Qualified Firm (“Third Firm”). If the parties are unable to agree upon a Third Firm within thirty (30) days after the first two appraisals have been provided to the parties, the two Qualified Firms purchase and sale shall select the Third Firm. The Third Firm shall conduct an appraisal of the value of the Put Securities or Called Securities, as applicable, with respect to which the higher appraisal was more than each pay one hundred ten percent half (110%½) of the Lower Appraisal (the “Third Appraisal”). The relative differences between the Higher Appraisal, the Lower Appraisal and the Third Appraisal shall be calculated and the two cost of any appraisals with the smallest relative difference shall be identified. The average of the two such identified appraisals shall be the Determined Value with respect pursuant to such Put Securities or Called Securities for which such Third Appraisal was required and shall be deemed conclusive and binding on the parties. All determination of the value of Put Securities or Called Securities, as applicable, shall be determined with appropriate discounts attributable to minority ownership and lack of marketability and shall take into account all unpaid dividends or interest, if any, accrued thereon. In conducting their appraisals, the Qualified Firms appointed hereunder shall consider all relevant evidence and information submitted to them, and all such evidence submitted this Article XI unless otherwise agreed by the parties shall be provided to each Qualified Firm. The Company shall cooperate with and provide all information reasonably requested by a Qualified Firm, subject to the execution by each selected Qualified Firm of a non-disclosure agreement in form and substance reasonably satisfactory to the Company. The determination of the value of the Put Securities or Called Securities, as applicable, by each Qualified Firm shall be set forth in writing, together with an explanation of the considerations upon which its appraisal is based (subject to any non-disclosure obligations), with a signed counterpart delivered simultaneously to unless the Company and Purchaser not later than sixty (60) days after selection of the last of the Qualified Firms. Purchaser acknowledges and agrees that all appraisals constitute confidential information of the Company that is subject to all existing obligations of Purchaser with respect to confidential information of the Company. The Company shall bear the fees and expenses of all Qualified Firms selected under this Section 5pay such costs.