Common use of Fair Value Defined Clause in Contracts

Fair Value Defined. Fair Value as of a particular date shall mean the average of the daily closing prices for the preceding twenty trading days before the day in question. The closing price for each day shall be the last reported sale price regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices regular way, in either case on the principal national securities exchange on which the Common Stock is listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices as reported by the National Association of Securities Dealers Automated Quotation System. If such quotations are unavailable, or with respect to other appropriate security, property, assets, business or entity, "Fair Value" shall mean the fair value of such item as determined by mutual agreement reached by the Company and [the holders constituting a majority of the unexercised shares of Common Stock issuable under the Warrants and the warrants issued under that certain Warrant Agreement dated as of April 26, 1999 (the "April Warrants") among the Company, Roge▇ ▇. ▇▇▇▇▇▇▇, ▇▇ch▇▇▇ ▇. ▇▇▇▇▇, ▇▇e Kush▇▇▇-▇▇▇▇▇ ▇▇▇pany, Al C▇▇▇▇▇▇ ▇▇▇ Ken ▇▇▇▇▇▇▇ (▇▇llectively, the "Majority of the Holders")] or, in the event the parties are unable to agree, an opinion of an independent investment banking firm or firms in accordance with the following procedure. In the case of any event which gives rise to a requirement to determine "Fair Value" pursuant to this Agreement, the Company shall be responsible for initiating the process by which Fair Value shall be determined as promptly as practicable, but in any event within sixty (60) days following such event and if the procedures contemplated herein in connection with determining Fair Value have not been complied with fully, then any such determination of Fair Value for any purpose of this Agreement shall be deemed to be preliminary and subject to adjustment pending full compliance with such procedures. Upon the occurrence of an event requiring the determination of Fair Value, the Company shall give the Holder and the holders of the April Warrants notice of such event, and the Company, the Holder and the holders of the April Warrants shall engage in direct good faith discussions to arrive at a mutually agreeable determination of Fair Value. In the event the Company and the Majority of the Holders are unable to arrive at a mutually agreeable determination within thirty (30) days of the notice, Deloitte & Touche LLP shall make such determination and render such an opinion. The determination so made shall be conclusive and binding on the Company and such holders. The fees and expenses of the investment banking firm retained for such purpose shall be equally shared by the Company and the holders.