Common use of Valuation Procedure Clause in Contracts

Valuation Procedure. At the time of the event giving rise to the need to determine the Fair Market Value of the Company (i.e., upon notice of --- exercise of the Call Option or the Change of Control Put), the following procedure shall be used to determine the Fair Market Value of the Company: (a) Within ten (10) days of receipt of notice of the event giving rise to the need to determine Fair Market Value, C&D shall select a nationally recognized investment banking firm, which shall establish the fair market value of all of the Interests of the Company by using valuation methods customary in the investment banking industry (including those set forth below) to determine the value of an enterprise in a sale to a third party in a process designed to maximize the value of the Member's Interests. C&D shall deliver the results of such valuation to the ▇▇▇▇▇ Member within twenty (20) days of such notice. Within ten (10) days of the ▇▇▇▇▇ Member's receipt of the results of such valuation, if the ▇▇▇▇▇ Member does not agree with the valuation provided by the bank selected by C&D, the ▇▇▇▇▇ Member shall select a nationally recognized investment banking firm to establish the fair market value of all of the Interests of the Company. The ▇▇▇▇▇ Member shall deliver the results of such valuation within twenty (20) days of the receipt of the results of the valuation by C&D's investment banking firm. If, after consideration of the valuation provided by the second bank, the ▇▇▇▇▇ Member and C&D are still unable to agree upon an appropriate valuation, then the ▇▇▇▇▇ Member and C&D shall promptly choose a third independent nationally recognized investment banking firm to perform a similar valuation. The "Fair Market Value" of the equity of the Company shall be the average of the two closest valuations by the investment banks. Costs and expenses incurred by each Member in connection with its selected investment banking firm providing a valuation shall be paid by such Member. If a third investment banking firm is chosen, costs and expenses incurred in connection with such firm providing a valuation shall be shared and paid equally by the Members. (b) Any investment bank retained pursuant to this section to determine the enterprise value for the Company shall utilize the most appropriate and relevant methods of financial analysis as it, in its discretion, shall determine. Without limiting the foregoing, any such investment bank shall consider each of the following valuation methodologies: (i) comparable public companies analysis (including public trading market multiples for companies in similar lines of business and size (assuming continuation of the Company in corporate form)); (ii) selected comparable precedent M&A transactions analysis (including in such precedent transactions the Acquisition, after giving effect to changes in the operations and business of the Company, the industry in which it operates and general market conditions since the Closing Date); (iii) discounted cash flow analysis; and (iv) any other methodologies deemed appropriate or relevant by such investment bank (e.g., initial public offering --- analysis, liquidation analysis, leveraged buyout analysis, sum-of-the-parts analysis (using varying multiples and tax effects, if applicable)). Any such valuation shall consider market conditions and shall be based on the assumption that the Company is an independent enterprise with its own executive management team and cost structure. Such valuation shall also be based on the assumption that the stock of the Company is widely distributed with no significant concentration held by any stockholder and could be freely sold without any negative implication arising with respect to its management by C&D, as well as such other assumptions as any such investment bank deems appropriate or relevant. (c) The ▇▇▇▇▇ Member agrees that in the event of a sale of the Company in its entirety to a third party, if appropriate in its sole discretion, it will take into consideration in connection with such sale the fact that ▇▇▇▇▇'▇ Interests in the Company have been held through the ▇▇▇▇▇ Blockers.

Valuation Procedure. At the time of the event giving rise to the need to determine the The Fair Market Value of the Company (i.e., upon notice of --- exercise Property of the Call Option Company, all of the Company’s Membership Interests or a Member’s Membership Interest in the Change Company shall be determined in the good faith judgment of Control Put)the Board. In the event that a Member disagrees with the determination by the Board of Fair Market Value of the Property of the Company, all of the Company’s Membership Interests or a Member’s Membership Interest in the Company for purposes of this Agreement, the following procedure shall be used to determine such disputed Fair Market Value (which procedure shall also be the general “Valuation Procedure” under this Agreement). Within thirty (30) days of the Company’s receipt of notice from such Member of its disagreement with the Board’s determination, such Member and the other Member will jointly select an independent valuation firm to determine Fair Market Value of the Company: (a) Within ten (10) days of receipt of notice Property of the event giving rise to the need to determine Fair Market ValueCompany, C&D shall select a nationally recognized investment banking firm, which shall establish the fair market value of all of the Company’s Membership Interests of the Company by using valuation methods customary or a Member’s Membership Interest in the investment banking industry (including those set forth below) to determine Company, as the value of an enterprise in a sale to a third party in a process designed to maximize case may be. If the value of the Member's Interests. C&D shall deliver the results of such valuation to the ▇▇▇▇▇ Member within twenty (20) days of such notice. Within ten (10) days of the ▇▇▇▇▇ Member's receipt of the results of such valuation, if the ▇▇▇▇▇ Member does not agree with the valuation provided by the bank selected by C&D, the ▇▇▇▇▇ Member shall select a nationally recognized investment banking firm to establish the fair market value of all of the Interests of the Company. The ▇▇▇▇▇ Member shall deliver the results of such valuation within twenty (20) days of the receipt of the results of the valuation by C&D's investment banking firm. If, after consideration of the valuation provided by the second bank, the ▇▇▇▇▇ Member and C&D parties are still unable to agree upon the selection of a valuation firm within the thirty (30) day period, then each party will select an appropriate valuationindependent valuation firm. The two (2) valuation firms so selected shall each independently determine the disputed Fair Market Value within sixty (60) days of their appointment. If either party fails to select an independent valuation firm within the time required, or if a party’s valuation firm fails to deliver its valuation to the Company within sixty (60) days after that valuation firm’s appointment, then the ▇▇▇▇▇ Member and C&D shall promptly choose a third independent nationally recognized investment banking firm to perform a similar valuation. The "Fair Market Value" Value shall be the Fair Market Value determined by the valuation firm timely selected by the other party, or by the valuation timely delivered to the Company, as the case may be. If the difference between the two (2) valuation firms’ determination of Fair Market Value does not exceed ten percent (10%) of the equity lower of the Company two (2) valuations, the Fair Market Value shall be the average of the two closest (2) valuations. If the difference between the two (2) valuation firms’ determination of Fair Market Value exceeds ten percent (10%) of the lower of the two (2) valuations, then the two (2) valuation firms shall select a third valuation firm within five (5) Business Days after the two (2) valuation firms delivered their respective valuations to the Company. The third valuation firm shall independently determine Fair Market Value. The Fair Market Value as finally determined in accordance with this section shall be binding and conclusive on all Members and the Company. The parties shall share equally the fees and expenses of any valuation firm they jointly name and of the valuation firm named by the investment banks. Costs and expenses incurred by each Member in connection with its selected investment banking firm providing a two (2) valuation shall be paid by such Member. If a third investment banking firm is chosen, costs and expenses incurred in connection with such firm providing a valuation shall be shared and paid equally by the Members. (b) Any investment bank retained pursuant to this section to determine the enterprise value for the Company shall utilize the most appropriate and relevant methods of financial analysis as it, in its discretion, shall determine. Without limiting the foregoing, any such investment bank shall consider each of the following valuation methodologies: (i) comparable public companies analysis (including public trading market multiples for companies in similar lines of business and size (assuming continuation of the Company in corporate form)); (ii) selected comparable precedent M&A transactions analysis (including in such precedent transactions the Acquisition, after giving effect to changes in the operations and business of the Company, the industry in which it operates and general market conditions since the Closing Date); (iii) discounted cash flow analysis; and (iv) any other methodologies deemed appropriate or relevant by such investment bank (e.g., initial public offering --- analysis, liquidation analysis, leveraged buyout analysis, sum-of-the-parts analysis (using varying multiples and tax effectsfirms, if applicable)). Any such valuation shall consider market conditions and Each party shall be based on responsible for the assumption that the Company is an independent enterprise with its own executive management team fees and cost structure. Such valuation shall also be based on the assumption that the stock expenses of the Company is widely distributed with no significant concentration held valuation firm named solely by any stockholder and could be freely sold without any negative implication arising with respect to its management by C&D, as well as such other assumptions as any such investment bank deems appropriate or relevantthat party. (c) The ▇▇▇▇▇ Member agrees that in the event of a sale of the Company in its entirety to a third party, if appropriate in its sole discretion, it will take into consideration in connection with such sale the fact that ▇▇▇▇▇'▇ Interests in the Company have been held through the ▇▇▇▇▇ Blockers.

Valuation Procedure. At In the time event the Fair Market Value is to be determined pursuant to this Agreement: A. As soon as is practicable after the receipt of any notice of an intent to convert debt to equity pursuant to Section 4.7 hereof or notice initiating the Appraisal Process pursuant to Section 6.6 hereof or to otherwise determine the fair market value of assets under this Agreement, the Hughes Member and the Darlene Member shall confer in good faith and ▇▇▇ ▇▇eir commercially ▇▇▇▇▇▇able efforts to determine the fair market value of the event giving rise equity of the Company based on a fully-distributed public market valuation (which valuation shall not give effect to any illiquidity, minority interest, or related discount), on the need applicable date (the "Fair Market Value"); provided, however, that if the Hughes Member and the Darlene Member are unable to agree on the Fair ▇▇▇▇▇t Value within t▇▇▇▇▇ (30) days after delivery of any such notice, or earlier, if they shall so agree, then the Hughes Member and the Darlene Member shall consult for the purpose o▇ ▇▇▇▇inting a mutuall▇ ▇▇▇▇▇table qualified independent expert (the "Expert") who shall determine the Fair Market Value of as soon after such Expert's appointment as is reasonably practicable. B. If the Company (i.e., upon notice of --- exercise of Hughes Member and the Call Option or the Change of Control Put), the following procedure Darlene Member shall be used unable to determine agree on a s▇▇▇▇▇ Expert within fi▇▇▇▇▇ (15) Business Days, the Fair Market Value of the Companyshall be determined as follows: (ai) Within each of the Hughes Member and the Darlene Member shall select one Expert (togeth▇▇, ▇▇e "Initial Exper▇▇") ▇▇t later than three (3) Business Days after the expiration of such fifteen (15) Business Day period (or agreed upon shorter period). The Initial Experts shall each provide their written conclusions as to the Fair Market Value not later than thirty (30) days after their engagement as Experts. If the Fair Market Values calculated by the Initial Experts differ by less than 15% of the larger calculated Fair Market Value, the Fair Market Value shall equal the average of the two. If such calculated Fair Market Values differ by more than 15% of the larger calculated Fair Market Value, a third expert (the "Third Expert") shall be selected promptly by the Initial Experts and such Third Expert shall provide a calculated Fair Market Value within twenty (20) days after the delivery of the Fair Market Value calculations delivered by the Initial Experts. The Fair Market Value shall be the average of the value calculated by such third Expert and the closest of the values previously provided by the Initial Experts; the valuation of the other Expert shall be excluded from the calculation of Fair Market Value. The Third Expert's valuation shall be made independently of the valuations of the Initial Experts and the Third Expert shall not consult with, or view any findings of, either Initial Expert in connection with the Third Expert's valuation. (ii) in the event that the Initial Experts shall be unable to agree upon a Third Expert within twenty (20) days after delivery of their calculations of Fair Market Value, both the Hughes Member and the Darlene Member shall notify the International ▇▇▇▇▇▇r of Commerce of ▇▇▇▇ ▇isagreement and the International Chamber of Commerce (or its successor) shall appoint the Third Expert within ten (10) days of receipt of notice of the event giving rise to the need to determine Fair Market Value, C&D shall select a nationally recognized investment banking firm, which shall establish the fair market value of all of the Interests of the Company by using valuation methods customary in the investment banking industry (including those set forth below) to determine the value of an enterprise in a sale to a third party in a process designed to maximize the value of the Member's Interests. C&D shall deliver the results of such valuation to the ▇▇▇▇▇ Member within twenty (20) days of such notice. Within ten (10) days of the ▇▇▇▇▇ Member's receipt of the results of such valuation, if the ▇▇▇▇▇ Member does not agree with the valuation provided by the bank selected by C&D, the ▇▇▇▇▇ Member shall select a nationally recognized investment banking firm to establish the fair market value of all of the Interests of the Company. The ▇▇▇▇▇ Member shall deliver the results of such valuation within twenty (20) days of the receipt of the results of the valuation by C&D's investment banking firm. If, after consideration of the valuation provided by the second bank, the ▇▇▇▇▇ Member and C&D are still unable to agree upon an appropriate valuation, then the ▇▇▇▇▇ Member and C&D shall promptly choose a third independent nationally recognized investment banking firm to perform a similar valuation. The "Fair Market Value" of the equity of the Company shall be the average of the two closest valuations by the investment banks. Costs and expenses incurred by each Member in connection with its selected investment banking firm providing a valuation shall be paid by such Member. If a third investment banking firm is chosen, costs and expenses incurred in connection with such firm providing a valuation shall be shared and paid equally by the Membersengagement. (b) Any investment bank retained pursuant to this section to determine the enterprise value for the Company shall utilize the most appropriate and relevant methods of financial analysis as it, in its discretion, shall determine. Without limiting the foregoing, any such investment bank shall consider each of the following valuation methodologies: (i) comparable public companies analysis (including public trading market multiples for companies in similar lines of business and size (assuming continuation of the Company in corporate form)); (ii) selected comparable precedent M&A transactions analysis (including in such precedent transactions the Acquisition, after giving effect to changes in the operations and business of the Company, the industry in which it operates and general market conditions since the Closing Date); (iii) discounted cash flow analysis; and (iv) any other methodologies deemed appropriate or relevant by such investment bank (e.g., initial public offering --- analysis, liquidation analysis, leveraged buyout analysis, sum-of-the-parts analysis (using varying multiples and tax effects, if applicable)). Any such valuation shall consider market conditions and shall be based on the assumption that the Company is an independent enterprise with its own executive management team and cost structure. Such valuation shall also be based on the assumption that the stock of the Company is widely distributed with no significant concentration held by any stockholder and could be freely sold without any negative implication arising with respect to its management by C&D, as well as such other assumptions as any such investment bank deems appropriate or relevant. (c) The ▇▇▇▇▇ Member agrees that in the event of a sale of the Company in its entirety to a third party, if appropriate in its sole discretion, it will take into consideration in connection with such sale the fact that ▇▇▇▇▇'▇ Interests in the Company have been held through the ▇▇▇▇▇ Blockers.