Common use of Challenge to Good Faith Determination Clause in Contracts

Challenge to Good Faith Determination. Whenever the Board of Directors of the Company is required to make a determination in good faith of the fair market value of this Warrant or the Warrant Shares under this SECTION 4, such determination may be challenged or disputed by the Holder. If the Holder wishes to challenge or dispute any such fair market value determination, it shall furnish written notice to the Company of its intention to challenge the same. If the Company and the Holder cannot resolve the dispute between or among themselves, then such dispute shall be submitted for final determination to an investment banking or accounting firm pursuant to the valuation procedures set forth in clause (ii) under the definition of Fair Market Value. The Company shall bear all fees, costs and expenses incurred by the Company and the Holder in connection with the determination of the Fair Market Value of this Warrant or the Warrant Shares, and any challenge or dispute thereof, including, without limitation, all fees and expenses of any investment banking, valuation or accounting firm(s) engaged by the Company or the Holder and of attorneys in connection with such calculation; PROVIDED, HOWEVER, that the Holder shall bear all such fees, costs and expenses if, after the Holder challenges or disputes any fair market value determination by the Board of Directors of the Company, the difference between (a) the fair market value determined pursuant to the valuation procedures set forth in clause (ii) under the definition of Fair Market Value and (b) the fair market value determined by the Holder, is less than five percent (5.0%) of the fair market value determined by the Board of Directors of the Company.

Challenge to Good Faith Determination. Whenever the Board of Directors of the Company is required to make a determination in good faith of the fair market value of this Warrant or the Warrant Shares under this SECTION Section 4, such determination may be challenged or disputed by the HolderRequired Holders. If the Holder wishes Required Holders wish to challenge or dispute any such fair market value determination, it the Required Holders shall furnish written notice to the Company of its their intention to challenge the same. If the Company and the Holder Required Holders cannot resolve the dispute between or among themselves, then such dispute shall be submitted for final determination to an investment banking or accounting firm pursuant to the valuation procedures set forth in clause (ii) under the definition of Fair Market Value. The Company shall bear all fees, costs and expenses incurred inured by the Company and the Holder Required Holders in connection with the determination of the Fair Market Value of this Warrant or the Warrant Shares, and any challenge or dispute thereof, including, without limitation, all fees and expenses of any investment banking, valuation or accounting firm(s) engaged by the Company or the Holder Required Holders and of attorneys in connection with such calculation; PROVIDEDprovided, HOWEVERhowever, that the Holder Holders of the Lender Warrants who approved the appointment of the investment banking or accounting firm in connection with such determination shall bear all such fees, costs and expenses if, after the Holder challenges Required Holders challenge or disputes dispute any fair market value determination by the Board of Directors of the Company, the difference between (a) the fair market value determined pursuant to the valuation procedures set forth in clause (ii) under the definition of Fair Market Value and (b) the fair market value determined by the HolderRequired Holders, is less than five percent (5.0%) of the fair market value determined by the Board of Directors of the Company.

Challenge to Good Faith Determination. Whenever the Board of Directors of the Company is required to make a determination in good faith of the fair market value Fair Market Value of this Warrant or the Warrant Shares under this SECTION 4Shares, such determination may be challenged or disputed by the HolderHolder (or if the Warrant has been divided up, the Holders of Warrants exercisable for the purchase of more than fifty percent (50%) of the aggregate number of Warrant Shares then issuable upon exercise of all of the then exercisable Warrants). If the Holder (or such Holders, as the case may be) wishes to challenge or dispute any such fair market value determination, it (or they) shall furnish written notice to the Company of its intention to challenge the same. If the Company and the Holder (or such Holders, as the case may be) cannot resolve the dispute between or among themselves, then such dispute shall be submitted for final determination to an investment banking or accounting firm of recognized national standing pursuant to the valuation procedures set forth in clause (ii) under the definition of Fair Market Value. The Company shall bear all All fees, costs and expenses incurred by the Company and the Holder (or such Holders, as the case may be) in connection with the determination of the Fair Market Value of this Warrant or the Warrant Shares, any such dispute and any challenge or dispute thereofdetermination, including, without limitation, all fees and expenses of any investment banking, valuation or accounting firm(sfirms(s) engaged by the Company or the Holder (or Holders, as the case may be) and of attorneys in connection with such calculation; PROVIDEDdispute and determination shall be paid by the Company, HOWEVERprovided, however, that the Holder (or Holders, as the case may be) shall bear all such fees, costs and expenses if, after the Holder (or Holders, as the case may be) challenges or disputes any fair market value determination by the Board of Directors of the Company, the difference between (a) the fair market value determined pursuant to the valuation procedures set forth in clause (ii) under the definition of Fair Market Value and (b) the fair market value determined by the HolderBoard of Directors of the Company, is less than five percent (5.0%) of the fair market value determined by the Board of Directors of the Company.