Common use of Determined Value Clause in Contracts

Determined Value. The Holder may exercise the Right to Put by delivering notice thereof ("Notice of Sale") to the Company. Promptly thereafter the Holder and the Company shall attempt to reach agreement on the Determined Value. If they do so agree, they shall put their agreement in writing, and closing shall be held in accordance with (S) 12.3. If the parties cannot agree, they shall promptly appoint a mutually acceptable qualified independent appraiser to provide the Determined Value. If parties shall be unable to agree on such an appraiser within 10 days of the Notice Date, the Purchase Price shall be determined by a panel of three independent appraisers, one of whom shall be selected by the Company, another of whom shall be selected by the Holder, and the third of whom shall be selected by such other two appraisers or, if such appraisers shall be unable to agree upon a third appraiser within 10 days of the selection date of the second of such two appraisers, by the American Arbitration Association; provided, that if either party shall not select its appraiser within 10 days after the Notice Date, such amount or value shall be determined solely by the appraiser selected by the other party. The appraiser or appraisers appointed pursuant to the foregoing procedure shall be instructed to determine such value within 30 days after the final appointment of any appraiser pursuant hereto (but in no event may such determination be made more than 45 days following the Notice Date), and such determination shall be final and binding upon the parties. If three appraisers shall be appointed, (a) if the median of the determinations of the appraisers shall equal the mean of such determinations, such mean shall constitute the determination of the appraisers, otherwise (b) the determination of the appraiser that shall differ most from the other two appraisers shall be excluded, the remaining two determinations shall be averaged and such average shall constitute the determination of the appraisers. Each party shall bear its respective fees and expenses with respect to any appraisal procedures and one-half of the fees and expenses of the appraisers participating in any appraisal procedure. The Company shall cause one copy of the final determination of the appraiser(s) to be sent directly to the Holder. Such determination shall set forth the date as of which the determination was made, (the "Determination Date").

Determined Value. The Holder may exercise 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 by delivering notice 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 of Sale"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 Companyother party of such selection. Promptly thereafter If either party fails to select, and give notice of, a Qualified Firm prior to the Holder Selection Deadline, such party shall be deemed to have agreed to the other party’s selection of a Qualified Firm and the Company appraisal of the value of the Put Securities or Called Securities, as applicable, by such selected Qualified Firm shall attempt to reach agreement on be the Determined ValueValue 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 they do so agreeeach party has timely selected a Qualified Firm, they then each of the two selected Qualified Firms shall put their agreement in writingconduct an appraisal of the value of the Put Securities or Called Securities, as applicable, and closing the parties shall be held in accordance with (S) 12.3arrange for the Qualified Firms to deliver their appraisals to each party simultaneously. If the parties cannot agreehigher 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”), they the average of the Lower Appraisal and the Higher Appraisal shall promptly appoint a mutually acceptable qualified independent appraiser to provide be the Determined Value. If parties Value with respect to such class of Put Securities or Called Securities and shall be unable to agree on such an appraiser within 10 days of the Notice Date, the Purchase Price shall be determined by a panel of three independent appraisers, one of whom shall be selected by the Company, another of whom shall be selected by the Holder, and the third of whom shall be selected by such other two appraisers or, if such appraisers shall be unable to agree upon a third appraiser within 10 days of the selection date of the second of such two appraisers, by the American Arbitration Association; provided, that if either party shall not select its appraiser within 10 days after the Notice Date, such amount or value shall be determined solely by the appraiser selected by the other party. The appraiser or appraisers appointed pursuant to the foregoing procedure shall be instructed to determine such value within 30 days after the final appointment of any appraiser pursuant hereto (but in no event may such determination be made more than 45 days following the Notice Date), and such determination shall be final deemed conclusive and binding upon the parties. If three appraisers 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 appointed, (a) if calculated and the median two appraisals with the smallest relative difference shall be identified. The average of the determinations of two such identified appraisals shall be the appraisers Determined Value with respect to such Put Securities or Called Securities for which such Third Appraisal was required and shall equal be deemed conclusive and binding on the mean of such determinations, such mean shall constitute the parties. All determination of the appraisersvalue of Put Securities or Called Securities, otherwise (b) 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 appraiser that shall differ most from value of the other two appraisers Put Securities or Called Securities, as applicable, by each Qualified Firm shall be excludedset forth in writing, the remaining two determinations shall be averaged and such average shall constitute the determination together with an explanation of the appraisersconsiderations 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. Each party shall bear its respective fees Purchaser acknowledges and expenses agrees that all appraisals constitute confidential information of the Company that is subject to all existing obligations of Purchaser with respect to any appraisal procedures and one-half confidential information of the Company. The Company shall bear the fees and expenses of the appraisers participating in any appraisal procedure. The Company shall cause one copy of the final determination of the appraiser(s) to be sent directly to the Holder. Such determination shall set forth the date as of which the determination was made, (the "Determination Date")all Qualified Firms selected under this Section 5.