Common use of Value of the Company Clause in Contracts

Value of the Company. “Value of the Company” shall mean (i) in the case of a Negotiated Change of Control, the value of the consideration actually received per share of common stock of the Company (the “Price Per Share”) multiplied by the total number of common shares (including the number of shares which would be outstanding upon exercise of any options or warrants, or upon conversion of any securities convertible into common stock) of the Company (the “Fully Diluted Outstanding Shares”); provided, however, that, if any portion of the consideration received by the Company’s shareholders consists of common stock of any other company merging with or acquiring the Company (the “Acquisition Partner”), that portion of the Price Per Share shall be calculated using the applicable exchange ratio contained in the definitive agreement multiplied by the average closing price of the Acquisition Partner’s common stock over the five trading day period up to and including the trading day preceding the closing of such Negotiated Change of Control, (ii) in all other cases where the Company’s common stock trades on an established stock exchange or a national market system, the average closing price of the Company’s common stock over the five trading day period up to and including the trading day preceding the occurrence of a Negotiated Change of Control multiplied by the Fully Diluted Outstanding Shares or (iii) in all other cases, the fair market value of the Fully Diluted Outstanding Shares on the date of the Negotiated Change of Control, as determined in good faith by the Board concurrent with or up to thirty (30) days in advance of such Negotiated Change of Control or, if such a timely determination is not made, following such Negotiated Change of Control.