Common use of Current Market Value Clause in Contracts

Current Market Value. For the purpose of any computation under this Section 2, the Current Market Value of one share of Common Stock or of any other security (herein collectively referred to as a "security") at the date herein specified shall be (1) if the Company does not have a class of equity securities registered under the Securities Exchange Act of 1934 (the "Exchange Act"), the value of the security (a) determined in good faith in the most recently completed arms-length transaction between the Company and a third party who is not an affiliate of the Company in which such determination is necessary and the closing of which occurs on such date or shall have occurred within the six months preceding such date, provided that the Board of Directors of the Company shall in god faith determine that any such value represents a reasonable estimate of the fair value of a share of Common Stock as of such date, (b) if no transactions shall have occurred on such date or within such six-month period, most recently determined as of a date within the six months preceding such date by an Independent Financial Expert (in the event of more than one such determination, the determination for the later date shall be used) or (c) if no such determination shall have been made within such six month period, determined as of such date by an Independent Financial Expert, or (2) if the Company does have a class of equity securities registered under the Exchange Act, deemed to be the average of the daily market prices of the security for five trading days before such date or, if the Company has had a class of equity securities registered under the Exchange Act for less than five trading days before such date, then the average of the daily market prices for all of the trading days before such date for which daily market prices are available. For purposes of this definition, control means the power to direct the management and policies of a person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.

Current Market Value. For the purpose of any computation under this Section 2, the Current Market Value of one Value" per share of Common Stock or of any other security (herein collectively referred to as a "securitySecurity") at the any date herein specified shall be be: (1) if the Company does Security is not have a class of equity securities registered under the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act"), (i) the value of the security (a) Security determined in good faith by the Board of Directors of the Company and certified in a board resolution, based on the most recently completed arms-arm's length transaction between the Company and a third party who is not person other than an affiliate Affiliate of the Company in which such determination is necessary and the closing of which occurs on such date or shall have occurred within the six months preceding such date, provided that the Board of Directors of the Company shall in god faith determine that any such value represents a reasonable estimate of the fair value of a share of Common Stock as of such date, (bii) if no transactions such transaction shall have occurred on such date or within such six-month period, the value of the Security most recently determined as of a date within the six months preceding such date by an Independent Financial Expert or (in the event of more than one such determinationiii) if neither clause (i) nor (ii) is applicable, the determination for value of the later date shall be used) or (c) if no such determination shall have been made within such six month period, Security determined as of such date by an Independent Financial Expert, or or (2) if the Company does have a class of equity securities Security is registered under the Exchange Act, deemed to be the average of the daily market prices of for each business day during the security for five trading period commencing 15 business days before such date and ending on the date one day prior to such date or, if the Company Security has had a class of equity securities been registered under the Exchange Act for less than five trading 15 consecutive business days before such date, then the average of the daily market prices for all of the trading business days before such date for which daily market prices are available. For purposes If the market price is not determinable for at least 10 business days in such period, the Current Market Value of this definition, control means the power to direct Security shall be determined as if the management and policies of a person, directly or indirectly, whether through Security was not registered under the ownership of voting securities, by contract or otherwiseExchange Act.

Current Market Value. (i) For the purpose of any computation under this Section 2, the Current Market Value of one share of Common Stock or of any other security (herein collectively referred to as a "security") at the date herein specified shall be (1) if the Company does not have a class of equity securities registered under the Securities Exchange Act of 1934 (the "Exchange Act"), the value of the security (a) determined in good faith in the most recently completed arms-length transaction between the Company and a third party who is not an affiliate of the Company in which such determination is necessary and the closing of which occurs on such date or shall have occurred within the six months preceding such date, provided that the Board of Directors of the Company shall in god good faith determine that any such value represents a reasonable estimate of the fair value of a share of Common Stock as of such date, (b) if no transactions such transaction shall have occurred on such date or within such six-month period, most recently determined as of a date within the six months preceding such date by an Independent Financial Expert (in the event of more than one such determination, the determination for the later date shall be used) or (c) if no such determination shall have been made within such six month period, determined as of such date by an Independent Financial Expert, or (2) if the Company does have a class of equity securities registered under the Exchange Act, deemed to be the average of the daily market prices of the security for five trading days before such date or, if the Company has had a class of equity securities registered under the Exchange Act for less than five trading days before such date, then the average of the daily market prices for all of the trading days before such date for which daily market prices are available. For purposes of this Section 2 an affiliate of a person shall mean any other person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such person. For purposes of this definition, control means the power to direct the management and policies of a person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise. (ii) The market price for each such business day shall be: (A) in the case of a security listed or admitted to trading on any securities exchange, the closing price, regular way, on such day, or if no sale takes place on such day, the average of the closing bid and asked prices on such day, (B) in the case of a security not then listed or admitted to trading on any securities exchange, the last reported sale price on such day, or if no sale takes place on such day, the average of the closing bid and asked prices on such day, as reported by a reputable quotation source designated by the Company, (C) in the case of a security not then listed or admitted to trading on any security exchange and as to which no such reported sale price or bid and asked prices are available, the average of the reported high bid and low asked prices on such day, as reported by a reputable quotation service, or a newspaper of general circulation in the Borough of Manhattan, City and State of New York, customarily published on each business day, designated by the Company, or if there shall be no bid and asked prices on such day, the average of the high bid and low asked prices, as so reported, on the most recent day (not more than five days prior to the date in question) for which prices have been so reported, and (D) if there are no bid and asked prices reported during the five days prior to the date in question, the Current Market Value of the security shall be determined as if the Company did not have a class of equity securities registered under the Exchange Act. (iii) For purposes of this Section 2A(3), an Independent Financial Expert shall mean a nationally recognized investment banking firm (i) which does not (and whose directors, officers, employees and affiliates do not), have a direct or indirect financial interest in the Company (other than the beneficial ownership, directly or indirectly, of less than three percent of the outstanding shares of capital stock of the Company), (ii) which has not been, and, at the time it is called upon to give independent financial advice to the Company, is not (and none of whose directors, officers, employees or affiliates is) a promoter, director or officer of the Company or any of its affiliates or an underwriter with respect to any of the Company's securities, (iii) which does not provide any advice or opinions to the Company except as an Independent Financial Expert and (iv) which is mutually agreeable to the Company and the holders of a majority of the Warrants. If the Company and the holders of a majority of the Warrants do not promptly agree as to the Independent Financial Expert, each shall appoint one investment banking firm and the two firms so appointed shall select the Independent Financial Expert to be employed by the Company. An Independent Financial Expert may be compensated by the Company for opinions or services it provides as an Independent Financial Expert. In making its determination of the value of the Common Stock, the Independent Financial Expert shall use one or more valuation methods that the Independent Financial Expert, in its best professional judgment, determines to be most appropriate. After the Independent Financial Expert has made its determination, the Company shall cause the Independent Financial Expert to prepare a report (a "Value Report") stating the methods of valuation considered or used and the value of the Common Stock or other security it values and containing a statement as to the nature and scope of the examination made. Such Value Report shall accompany any Adjustment Notice (as defined in Section 2B) sent by the Company to the Holder pursuant to Section 2B; provided, that the adjustment to the Exercise Price that is the subject of such Adjustment Notice requires the services of an Independent Financial Expert.

Current Market Value. For the purpose of any computation under this Section 2, the Current Market Value of one Value" per share of Common Stock or of any other security at any date means (herein collectively referred to as a "security") at the date herein specified shall be (1i) if the Company does not have a class of equity securities security is registered under the Securities Exchange Act Act, the average of 1934 the daily closing bid prices (or the equivalent in an over-the-counter market) for each day on which the Common Stock is traded for any period on the principal securities exchange or other securities market on which the Common Stock is being traded (each, a "Trading Day") during the period commencing eleven Trading Days before such date and ending on the date one day prior to such date; provided, however that if the closing bid price is not determinable for at least five Trading Days in such period, the "Current Market Value" of the security shall be determined as if the security were not registered under the Exchange Act"), or (ii) if the security is not registered under the Exchange Act, (A) the value of the security (a) security, determined in good faith by the Board of Directors of the Company and certified in a board resolution, based on the most recently completed armsarm's-length transaction between the Company and a third party who is not person other than an affiliate of the Company in which such determination is necessary and the closing of which occurs on such date or shall have occurred within the six months six-month period preceding such date, provided that the Board of Directors of the Company shall in god faith determine that any such value represents a reasonable estimate of the fair value of a share of Common Stock as of such date, or (bB) if no transactions such transaction shall have occurred on such date or within such the six-month period, most recently the value of the security as determined as of a date within the six months preceding such date by an Independent Financial Expert (independent financial expert mutually agreed upon by the Company and the Holder and, in the event the Company and the Holder fail to so mutually agree within 30 days after the date of more than one such determinationthe requirement to determine the Current Market Value hereunder, the determination for parties shall submit the later date shall be used) or (c) if no such determination shall have been made within such six month period, determined as of such date by an Independent Financial Expert, or (2) if the Company does have a class of equity securities registered under the Exchange Act, deemed to be the average selection of the daily market prices of independent financial expert to the security American Arbitration Association for five trading days before such date or, if the Company has had a class of equity securities registered under the Exchange Act for less than five trading days before such date, then the average of the daily market prices for all of the trading days before such date for which daily market prices are available. For purposes of this definition, control means the power to direct the management and policies of a person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwisearbitration in New Jersey.

Current Market Value. For the purpose of any computation under pursuant to this Section 2, the Current Market Value of one share of Common Stock or of any other security (herein collectively herein, collectively, referred to as a "security") at the date herein specified shall be (1a) if the Company does not have a class of equity securities registered under pursuant to the Securities Exchange Act of 1934 (the "Exchange Act"), the value of the security (ai) determined in good faith in the most recently completed arms-length transaction between the Company and a third party who is not an affiliate of the Company in which such determination is necessary and the closing of which occurs on such date or shall have occurred within the six (6) months preceding such date; provided, provided however, that the Board of Directors of the Company shall in god good faith determine that any such value represents a reasonable estimate of the fair value of a share of Common Stock as of such date, (bii) if no transactions such transaction shall have occurred on such date or within such six-month period, most recently determined as of a date within the six (6) months preceding such date by an Independent Financial Expert (in the event of more than one such determination, the determination for the later date shall be used) or (ciii) if no such determination shall have been made within such six month period, determined as of such date by an Independent Financial Expert, or (2b) if the Company does have a class of equity securities registered under pursuant to the Exchange Act, deemed to be the average of the daily market prices of the security for five trading days before such date or, if the Company has had a class of equity securities registered under pursuant to the Exchange Act for less than five (5) trading days before such date, then the average of the daily market prices for all of the trading days before such date for which daily market prices are available. For purposes of this Section 2, an "affiliate" of a person shall mean any other person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such person. For purposes of this definition, control "control" means the power to direct the management and policies of a person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise. The market price for each such business day shall be (a) in the event of a security listed or admitted to trading on any securities exchange, the closing price, regular way, on such day, or if no sale takes place on such day, the average of the closing bid and asked prices on such day; (b) in the event of a security not then listed or admitted to trading on any securities exchange, the last reported sale price on such day, or if no sale takes place on such day, the average of the closing bid and asked prices on such day, as reported by a reputable quotation source designated by the Company; (c) in the event of a security not then listed or admitted to trading on any security exchange and as to which no such reported sale price or bid and asked prices are available, the average of the reported high bid and low asked prices on such day, as reported by a reputable quotation service, or a newspaper of general circulation in the City of Los Angeles, State of California, customarily published on each business day, designated by the Company, or if there shall be no bid and asked prices on such day, the average of the high bid and low asked prices, as so reported, on the most recent day (not more than five days prior to the date in question) for which prices have been so reported; and (d) if there are no bid and asked prices reported during the five days prior to the date in question, the Current Market Value of the security shall be determined as if the Company did not have a class of equity securities registered pursuant to the Exchange Act.

Current Market Value. For the purpose of any computation under this Section 2, the Current Market Value Value" of one share of Common Stock Membership Interests or of any other security (herein collectively referred to as a "securitySecurity") at the any date herein specified shall be be: (1) if the Company does Security is not have a class of equity securities registered under the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act"), (i) the value of the security (a) Security determined in good faith in by the manager of the Company, based on the most recently completed arms-arm's length transaction between the Company and a third party who is not person other than an affiliate Affiliate of the Company in which such determination is necessary and the closing of which occurs on such date or shall have occurred within the six months preceding such date, provided that the Board of Directors of the Company shall in god faith determine that any such value represents a reasonable estimate of the fair value of a share of Common Stock as of such date, (bii) if no transactions such transaction shall have occurred on such date or within such six-month period, the value of the Security most recently determined as of a date within the six months preceding such date by an Independent Financial Expert or (in the event of more than one such determinationiii) if neither clause (i) nor (ii) is applicable, the determination for value of the later date shall be used) or (c) if no such determination shall have been made within such six month period, Security determined as of such date by an Independent Financial Expert, or or (2) if the Company does have a class of equity securities Security is registered under the Exchange Act, deemed to be the average of the daily market prices of for each Business Day during the security for five trading days period commencing 15 Business Days before such date and ending on the date one day prior to such date or, if the Company Security has had a class of equity securities been registered under the Exchange Act for less than five trading days 15 consecutive Business Days before such date, then the average of the daily market prices for all of the trading days Business Days before such date for which daily market prices are available. For purposes If the market price is not determinable for at least 10 Business Days in such period, the Current Market Value of this definition, control means the power to direct Security shall be determined as if the management and policies of a person, directly or indirectly, whether through Security was not registered under the ownership of voting securities, by contract or otherwiseExchange Act.

Current Market Value. For the purpose of any computation under this Section 2, the Current Market Value of one Value" per share of Common Stock or of any other security (herein collectively referred to as a "securitySecurity") at the any date herein specified shall be be: (1) if the Company does Security is registered under the Exchange Act, the average of the daily Market Prices for each business day during the period commencing 15 business days before such date and ending on the date one day prior to such date or, if the Security has been registered under the Exchange Act for less than 15 consecutive business days before such date, then the average of the daily Market Prices for all of the business days before such date for which daily Market Prices are available. If the Market Price is not have a class determinable for at least 10 business days in such period, the Current Market Value of equity securities the Security shall be determined as if the Security was not registered under the Exchange Act; or (2) if the Security is not registered under the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act"), (i) the value of the security (a) Security determined in good faith by the Board of Directors of the Company and certified in a board resolution, based on the most recently completed arms-arm's length transaction between the Company and a third party who is not person other than an affiliate Affiliate of the Company in which such determination is necessary and the closing of which occurs on such date or shall have occurred within the six months preceding such date, provided that the Board of Directors of the Company shall in god faith determine that any such value represents a reasonable estimate of the fair value of a share of Common Stock as of such date, (bii) if no transactions such transaction shall have occurred on such date or within such six-month period, the value of the Security most recently determined as of a date within the six months preceding such date by an Independent Financial Expert or (in the event of more than one such determinationiii) if neither clause (i) nor (ii) is applicable, the determination for value of the later date shall be used) or (c) if no such determination shall have been made within such six month period, Security determined as of such date by an Independent Financial Expert, or (2) if the Company does have a class of equity securities registered under the Exchange Act, deemed to be the average of the daily market prices of the security for five trading days before such date or, if the Company has had a class of equity securities registered under the Exchange Act for less than five trading days before such date, then the average of the daily market prices for all of the trading days before such date for which daily market prices are available. For purposes of this definition, control means the power to direct the management and policies of a person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.

Current Market Value. For the purpose of any computation under this Section 2, the Current Market Value of one Value" per share of Common Stock or of any other security (herein collectively referred to as a "securitySecurity") at the any date herein specified shall be be: (1i) if the Company does Security is not have a class of equity securities registered under the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act"), (a) the value of the security (a) Security determined in good faith by the Board of Directors of the Company and certified in a board resolution, based on the most recently completed arms-arm's length transaction between the Company and a third party who is not person other than an affiliate Affiliate of the Company in which such determination is necessary and the closing of which occurs on such date or shall have occurred within the six months preceding such date, provided that the Board of Directors of the Company shall in god faith determine that any such value represents a reasonable estimate of the fair value of a share of Common Stock as of such date, (b) if no transactions such transaction shall have occurred on such date or within such six-month period, the value of the Security most recently determined as of a date within the six months preceding such date by an Independent Financial Expert (in the event of more than one such determination, the determination for the later date shall be used) or (c) if no such determination shall have been made within such six month periodneither clause (a) nor (b) is applicable, the value of the Security determined as of such date by an Independent Financial Expert, or or (2ii) if the Company does have a class of equity securities Security is registered under the Exchange Act, deemed to be the average of the daily market prices of for each Business Day during the security for five trading days period commencing 15 Business Days before such date and ending on the date one day prior to such date or, if the Company Security has had a class of equity securities been registered under the Exchange Act for less than five trading days 15 consecutive Business Days before such date, then the average of the daily market prices for all of the trading days Business Days before such date for which daily market prices are available. For purposes If the market price is not determinable for at least 10 Business Days in such period, the Current Market Value of this definition, control means the power to direct Security shall be determined as if the management and policies of a person, directly or indirectly, whether through Security was not registered under the ownership of voting securities, by contract or otherwiseExchange Act.

Current Market Value. For the purpose of any computation under this Section 2, the Current Market Value of one share of Common Stock or of any other security (herein collectively referred to as a "security") at the date herein specified shall be (1) if the Company does not have a class of equity securities registered under the Securities Exchange Act of 1934 (the "Exchange Act"), the value of the security (a) determined in good faith in the most recently completed arms-length armslength transaction between the Company and a third party who is not an affiliate of the Company in which such determination is necessary and the closing of which occurs on such date or shall have occurred within the six months preceding such date, provided that the Board of Directors of the Company shall in god good faith determine that any such value represents a reasonable estimate of the fair value of a share of Common Stock as of such date, (b) if no transactions such transaction shall have occurred on such date or within such six-month period, most recently determined as of a date within the six months preceding such date by an Independent Financial Expert (in the event of more than one such determination, the determination for the later date shall be used) or (c) if no such determination shall have been made within such six month period, determined as of such date by an Independent Financial Expert, or (2) if the Company does have a class of equity securities registered under the Exchange Act, deemed to be the average of the daily market prices of the security for five trading days before such date or, if the Company has had a class of equity securities registered under the Exchange Act for less than five trading days before such date, then the average of the daily market prices for all of the trading days before such date for which daily market prices are available. For purposes of this Section 2 an affiliate of a person shall mean any other person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such person. For purposes of this definition, control means the power to direct the management and policies of a person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise. The market price for each such business day shall be: (A) in the case of a security listed or admitted to trading on any securities exchange, the closing price, regular way, on such day, or if no sale takes place on such day, the average of the closing bid and asked prices on such day, (B) in the case of a security not then listed or admitted to trading on any securities exchange, the last reported sale price on such day, or if no sale takes place on such day, the average of the closing bid and asked prices on such day, as reported by a reputable quotation source designated by the Company, (C) in the case of a security not then listed or admitted to trading on any security exchange and as to which no such reported sale price or bid and asked prices are available, the average of the reported high bid and low asked prices on such day, as reported by a reputable quotation services, or a newspaper of general circulation in the Borough of Manhattan, City and State of New York, customarily published on each business day, designated by the Company, or if there shall be no bid and asked prices on such day, the average of the high bid and low asked prices, as so reported, on the most recent day (not more than five days prior to the date in question) for which prices have been so reported, and (D) if there are no bid and asked prices reported during the five days prior to the date in question, the Current Market Value of the security shall be determined as if the Company did not have a class of equity securities registered under the Exchange Act. For purposes of this Section 2A(3), an Independent Financial Expert shall mean a nationally recognized investment banking firm (i) which does not (and whose directors, officers, employees and affiliates do not), have a direct or indirect financial interest in the Company (other than the beneficial ownership, directly or indirectly, of less than three percent of the outstanding shares of capital stock of the Company), (ii) which has not been, and, at the time it is called upon to give independent financial advise to the Company, is not (and none of whose directors, officers, employees or affiliates is) a promoter, director or officer of the Company or any of its affiliates or an underwriter with respect to any of the Company's securities, (iii) which does not provide any advise or opinions to the Company except as an Independent Financial Expert and (iv) which is mutually agreeable to the Company and the holders of a majority of the Warrants. If the Company and the holders of a majority of the Warrants do not promptly agree as to the Independent Financial Expert, each shall appoint one investment banking firm and the two firms so appointed shall select the Independent Financial Expert to be employed by the Company. An Independent Financial Expert may be compensated by the Company for opinions or services it provides as an Independent Financial Expert. In making its determination of the value of the Common Stock, the Independent Financial Expert shall use one or more valuation methods that the Independent Financial Expert, in its best professional judgment, determines to be most appropriate. After the Independent Financial Expert has made its determination, the Company shall cause the Independent Financial Expert to prepare a report (a "Value Report") stating the methods of valuation considered or used and the value of the Common Stock or other security it values and containing a statement as to the nature and scope of the examination made. Such Value Report shall accompany any Adjustment Notice (as defined in Section 2B) sent by the Company to the Holder pursuant to Section 2B; provided, that the adjustment to the Exercise Price that is the subject of such Adjustment Notice requires the services of an Independent Financial Expert.