Common use of Total Consideration Clause in Contracts

Total Consideration. The definition of “Total Consideration” is amended and restated to read: “The total consideration paid and to be paid (which shall be deemed to include amounts paid or to be paid into escrow), directly or indirectly, regardless of how allocated or the form of consideration, to the Company or its security holders in connection with a Sale Transaction, including, without limitation: (i) cash; (ii) notes or debt (valued at face) or equity securities (which, if of the same class as securities which are publicly traded, shall be valued at the average of the last closing market price thereof on each of the five trading days prior to the closing of the Sale Transaction) and other property; (iii) the value of assumed, “cashed out” or substituted options, warrants or other rights to acquire capital stock (whether or not vested); (iv) any interest-bearing indebtedness, or capital lease obligations of the Company or others assumed by an acquiring party in an acquisition of assets or which remain outstanding at the time of the closing of the Sale Transaction in all other cases; (v) payments to be made in installments or otherwise deferred, including amounts held in escrow; (vi) contingent payments, related to future earnings or operations; (vii) any assets (whether cash, cash equivalents, securities or other property) of the Company which are paid in the form of dividends, capital distributions, partial or total liquidating distributions or otherwise to its security holders other than in the ordinary course of business; and (viii) any other form of consideration to be paid, including amounts over normal salaries, severance, salary continuances and executive retention programs, reimbursement for taxes, payments for non-competition agreements, confidentiality agreements, consulting agreements, license agreements and above market rentals. In the case of a recapitalization, Total Consideration includes the value of any capital stock of the Company or rights to acquire capital stock of the Company (whether or not vested) that roll over or otherwise remain outstanding following the Sale Transaction. The value of all non-cash consideration, other than consideration in the form of notes or debt, or equity securities, which are of a class which is publicly traded, shall be the fair market value thereof as mutually agreed by Executive and Company in writing, or if Executive and Company are unable to reach an agreement within 30 days after the closing of the Sale Transaction, as determined by an investment banker or other person experienced in valuing such non-cash consideration mutually acceptable to Executive and the Company. The determination of the investment banker or other person shall be binding on Executive and Company, and Executive and Company shall each be responsible for paying one-half of the fees of any such investment banker or other person.