Common use of Valuation Procedure Clause in Contracts

Valuation Procedure. Whenever the value of the Shares must be determined pursuant to Section 4.2 hereof, within ten (10) days after notice is given by University, University and Licensee shall attempt to agree upon the selection of a disinterested independent qualified investment banking firm or other disinterested independent qualified appraiser (the “Appraiser”) to determine the fair market value of such Shares. If the parties are able to agree upon an Appraiser, then such Appraiser will be instructed to furnish a written valuation or appraisal (an “Appraisal”) within thirty (30) days after its selection. If the parties are unable to agree upon the selection of an Appraiser within a ten (10) day period, then University and Licensee will, within five (5) days after the end of such ten (10) day period, each select an Appraiser to determine the fair market value of such Shares. If either University or Licensee fails to so select an Appraiser, the Appraisal of the Appraiser selected by the other shall determine the fair market value of such Shares. If the higher of the two Appraisals is not more than one hundred ten percent (110%) of the lower Appraisal, then the fair market value of such Shares will be the arithmetic average of the two Appraisals. If the higher of the two Appraisals is equal to or greater than one hundred ten percent (110%) of the lower Appraisal, then the two Appraisers shall, within ten (10) days after the issuance of their respective reports, select a third Appraiser to determine the fair market value of such Shares. The third Appraiser will be instructed to issue a written Appraisal within thirty (30) days after this selection. The third Appraisal shall be arithmetically averaged with the two Appraisals, and the Appraisal furthest from the average of all three Appraisals will be disregarded. The arithmetic average of the two remaining Appraisals will be the fair market value of such Shares. Each Appraiser engaged to provide an Appraisal pursuant hereto will be instructed (i) to include therein a statement of the criteria applied and assumptions made to determine the fair market value of the Shares, (ii) to arrive at a single calculation of such fair market value rather than alternative calculations or a range of calculations, and (iii) not to attribute a premium or discount based on the fact that the Shares being valued constitutes a majority or less than a majority of the total issued and outstanding Shares of Licensee. Any Appraisal by an Appraiser that fails to follow the instructions set forth in this Exhibit C shall not constitute an Appraisal for purposes of this Agreement; except that the failure of an Appraiser to complete an Appraisal within thirty (30) days as instructed shall not affect the validity of such Appraiser’s Appraisal. The cost of Appraisal or Appraisals under the first redemption of stock by the University shall be paid as follows: Licensee shall pay for the cost of the first Appraiser. If a second Appraiser is required, University shall pay the cost of the second Appraiser. If a third Appraiser is required, Licensee and University shall share equally the cost of the third Appraiser. With respect to any subsequent redemption of stock in which any Appraiser is engaged, University shall bear the complete cost of such Appraiser or Appraisers. In lieu of determining the Redemption Price for the Shares by Appraisal, Licensee and University may negotiate and stipulate a Redemption Price on terms mutually acceptable to such parties. * Confidential Treatment Requested i THIS LICENSE AGREEMENT is made and entered into as of this 17th day of April 1996, by and between EMORY UNIVERSITY, a Georgia nonprofit corporation with offices at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, (hereinafter referred to as “EMORY”), and TRIANGLE PHARMACEUTICALS, INC., a for profit Delaware corporation with principal offices located at ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter referred to as “COMPANY”).

Valuation Procedure. Whenever The following is the "Valuation Procedure" to be utilized in determining the purchase price of an Interest (but only if there is a specific reference to using the Valuation Procedure). The purchase price for such Interest is the amount agreed to between the seller and the purchaser. If the seller and the purchaser are unable to agree on the purchase price within 30 days after the event giving rise to the purchase occurs, the purchase price is the appraised value of the Shares must Interest, which appraised value is to be determined pursuant to Section 4.2 hereof, within ten (10) days after notice is given by University, University and Licensee shall attempt to agree upon the selection following appraisal procedure. For purposes of a disinterested independent qualified investment banking firm or other disinterested independent qualified appraiser (determining the “Appraiser”) to determine the fair market appraised value of such Sharesthe Interest being acquired, the seller and the purchaser are to appoint by mutual agreement an appraiser that is experienced in the appraisal on a going concern basis and a liquidation basis of properties similar to the Interest and similar to the properties (including stock in Subsidiaries, if any) owned by the Company and its Subsidiaries (computed on an aggregate basis). If the parties are able to seller and the purchaser cannot agree upon on an Appraiser, then such Appraiser will be instructed to furnish a written valuation or appraisal (an “Appraisal”) appraiser within thirty (30) days after its selection. If the parties are unable to agree upon the selection of an Appraiser within a ten (10) day period, then University and Licensee will, within five (5) 15 days after the end of such ten the 30 day period referenced above, then the seller and the purchaser are to each appoint an appraiser meeting the criteria set forth above. Each appraiser so chosen, within 45 days following its appointment, is to independently determine and submit to the seller and the purchaser, in writing with reasons in support thereof, an appraisal of the Interest as set forth herein (10) day periodwithout any discounts being applied thereto, each select an Appraiser to determine including minority discounts, and taking into account all Debts of the Company). If one appraisal is required, then the net fair market value of such Sharesis to be based on that appraisal. If either University or Licensee fails to so select an Appraiser, the Appraisal of the Appraiser selected by the other shall determine the fair market value of such Shares. If two appraisals are required and if the higher of appraisal does not exceed the two Appraisals is not lower appraisal by more than one hundred ten percent (110%) of the lower Appraisalpercent, then the fair market value of such Shares will be the arithmetic average of the two Appraisals. If the higher of the two Appraisals is equal to or greater than one hundred ten percent (110%) of the lower Appraisal, then the two Appraisers shall, within ten (10) days after the issuance of their respective reports, select a third Appraiser to determine the fair market value of such Shares. The third Appraiser will be instructed to issue a written Appraisal within thirty (30) days after this selection. The third Appraisal shall be arithmetically averaged with the two Appraisals, and the Appraisal furthest from the average of all three Appraisals will be disregarded. The arithmetic average of the two remaining Appraisals will be the fair market value of such Shares. Each Appraiser engaged to provide an Appraisal pursuant hereto will be instructed (i) to include therein a statement of the criteria applied and assumptions made to determine the net fair market value of the SharesInterest is to be based on the average of the two appraisals. If the higher appraisal does exceed the lower appraisal by more than ten percent, then such appraisers (iithe "First Appraisers") are to arrive at a single calculation appoint another appraiser of such the same qualifications (the "Second Appraiser"); provided, however, that if the First Appraisers fail to agree on the appointment of the Second Appraiser within 60 days following their appointment, the Second Appraiser is to be appointed by the presiding judge of the St. Louis County Circuit Court. The net fair market value rather than alternative calculations or a range of calculations, and (iii) not the Interest is to attribute a premium or discount then be based on the fact that the Shares being valued constitutes a majority or less than a majority average of the total issued and outstanding Shares of Licensee. Any Appraisal by an Appraiser that fails to follow the instructions set forth in this Exhibit C shall not constitute an Appraisal for purposes of this Agreement; except that the failure of an Appraiser to complete an Appraisal within thirty (30) days as instructed shall not affect the validity of such Appraiser’s Appraisal. The cost of Appraisal or Appraisals under the first redemption of stock appraisal made by the University shall be paid as follows: Licensee shall pay for the cost Second Appraiser and that appraisal made by one of the first First Appraisers which is closer in value to the appraisal of the Second Appraiser. If a second Appraiser is requiredthe seller or the purchaser fails to appoint an appraiser within the time period provided above, University shall pay or if an appraiser appointed by any party fails to deliver its appraisal to the cost other party within the time period provided above, the net fair market value of the second Appraiser. If a third Appraiser Interest being acquired is required, Licensee and University shall share equally to be determined solely by the cost appraisal(s) of the third appraiser(s) that was timely appointed and who timely submitted an appraisal. The Second Appraiser, as a condition to its appointment, must agree to complete its appraisal within 30 days following its appointment. With respect The costs of all such appraisals are to any subsequent redemption of stock in which any Appraiser be borne 50% by the seller and 50% by the purchaser. The purchase price is engaged, University shall bear the complete cost of such Appraiser or Appraisers. In lieu of determining the Redemption Price for the Shares by Appraisal, Licensee and University may negotiate and stipulate a Redemption Price on terms mutually acceptable deemed to such parties. * Confidential Treatment Requested i THIS LICENSE AGREEMENT is made and entered into have been determined as of this 17th day the date the seller and the purchaser agree on the purchase price or as of April 1996the date the requisite appraisal(s) is timely delivered, by and between EMORY UNIVERSITY, a Georgia nonprofit corporation with offices at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇as applicable.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, (hereinafter referred to as “EMORY”), and TRIANGLE PHARMACEUTICALS, INC., a for profit Delaware corporation with principal offices located at ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter referred to as “COMPANY”).

Valuation Procedure. Whenever the value of the Shares must be determined pursuant to Section 4.2 hereof, within ten (10) days after notice is given by University, University and Licensee shall attempt to agree upon the selection of a disinterested independent qualified investment banking firm or other disinterested independent qualified appraiser (the “Appraiser”) to determine the fair market value of such Shares. If the parties are able to agree upon an Appraiser, then such Appraiser will be instructed to furnish a written valuation or appraisal (an “Appraisal”) within thirty (30) days after its selection. If the parties are unable to agree upon the selection of an Appraiser within a ten (10) day period, then University and Licensee will, within five (5) days after the end of such ten (10) day period, each select an Appraiser to determine the fair market value of such Shares. If either University or Licensee fails to so select an Appraiser, the Appraisal of the Appraiser selected by the other shall determine the fair market value of such Shares. If the higher of the two Appraisals is not more than one hundred ten percent (110%) of the lower Appraisal, then the fair market value of such Shares will be the arithmetic average of the two Appraisals. If the higher of the two Appraisals is equal to or greater than one hundred ten percent (110%) of the lower Appraisal, then the two Appraisers shall, within ten (10) days after the issuance of their respective reports, select a third Appraiser to determine the fair market value of such Shares. The third Appraiser will be instructed to issue a written Appraisal within thirty (30) days after this selection. The third Appraisal shall be arithmetically averaged with the two Appraisals, and the Appraisal furthest from the average of all three Appraisals will be disregarded. The arithmetic average of the two remaining Appraisals will be the fair market value of such Shares. Each Appraiser engaged to provide an Appraisal pursuant hereto will be instructed (i) to include therein a statement of the criteria applied and assumptions made to determine the fair market value of the Shares, (ii) to arrive at a single calculation of such fair market value rather than alternative calculations or a range of calculations, and (iii) not to attribute a premium or discount based on the fact that the Shares being valued constitutes a majority or less than a majority of the total issued and outstanding Shares of Licensee. Any Appraisal by an Appraiser that fails to follow the instructions set forth in this Exhibit C shall not constitute an Appraisal for purposes of this Agreement; except that the failure of an Appraiser to complete an Appraisal within thirty (30) days as instructed shall not affect the validity of such Appraiser’s Appraisal. The cost of Appraisal or Appraisals under the first redemption of stock by the University shall be paid as follows: Licensee shall pay for the cost of the first Appraiser. If a second Appraiser is required, University shall pay the cost of the second Appraiser. If a third Appraiser is required, Licensee and University shall share equally the cost of the third Appraiser. With respect to any subsequent redemption of stock in which any Appraiser is engaged, University shall bear the complete cost of such Appraiser or Appraisers. In lieu of determining the Redemption Price for the Shares by Appraisal, Licensee and University may negotiate and stipulate a Redemption Price on terms mutually acceptable to such parties. * Confidential Treatment Requested i THIS LICENSE AGREEMENT is made and entered into as of this 17th day of April 1996, by and between EMORY UNIVERSITY, a Georgia nonprofit corporation with offices at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, (hereinafter referred to as “EMORY”), and TRIANGLE PHARMACEUTICALS, INC., a for profit Delaware corporation with principal offices located at ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter referred to as “COMPANY”).