Common use of Amount Deemed Paid or Distributed Clause in Contracts

Amount Deemed Paid or Distributed. The funds and assets deemed paid or distributed to the holders of capital stock of the Corporation upon any such merger, consolidation, sale, transfer or other disposition described in this Section 2 shall be the cash or the value of the property, rights or securities paid or distributed to such holders by the Corporation or the acquiring person, firm or other entity. The value of such property, rights or securities shall be deemed its fair market value. Any securities shall be valued as follows: (a) Securities not subject to investment letter or other similar restrictions on free marketability covered by (b) below: (i) If traded on a securities exchange, the value shall be deemed to be the average of the closing prices of the securities on such exchange over the twenty (20) trading day period ending three (3) trading days prior to the closing of the Deemed Liquidation Event; (ii) If actively traded over-the-counter, the value shall be deemed to be the average of the closing bid or sale prices (whichever is applicable) over the twenty (20) trading day period ending three (3) trading days prior to the closing of the Deemed Liquidation Event; and (iii) If there is no active public market, the value shall be the fair market value thereof, as determined by the Board. (b) The method of valuation of securities subject to investment letter or other restrictions on free marketability (other than restrictions arising solely by virtue of a stockholder’s status as an affiliate or former affiliate) shall be to make an appropriate discount from the market value determined as above in (a) (i), (ii) or (iii) to reflect the approximate fair market value thereof, as determined by the Board.

Amount Deemed Paid or Distributed. The funds and assets If the amount deemed paid or distributed to under this Subsection 3(e)(iii) is made in property other than in cash, the holders value of capital stock of the Corporation upon any such merger, consolidation, sale, transfer or other disposition described in this Section 2 distribution shall be the cash or the value of the property, rights or securities paid or distributed to such holders by the Corporation or the acquiring person, firm or other entity. The fair market value of such property, rights determined by the Board, or in the event of securities shall be deemed its fair market value. Any securities shall be valued as follows: (aA) Securities For securities not subject to investment letter letters or other similar restrictions on free marketability covered by (b) below:marketability, (i1) If if traded on a securities exchange, the value shall be deemed to be the average of the closing prices of the securities on such exchange or market over the twenty thirty (2030) trading day period ending three (3) trading days prior to the closing of the Deemed Liquidation Eventsuch transaction; (ii2) If if actively traded over-the-counter, the value shall be deemed to be the average of the closing bid or sale prices (whichever is applicable) over the twenty thirty (2030) trading day period ending three (3) trading days prior to the closing of the Deemed Liquidation Eventsuch transaction; andor (iii3) If if there is no active public market, the value shall be the fair market value thereof, as determined by the BoardBoard acting in good faith. (bB) The method of valuation of securities subject to investment letter letters or other similar restrictions on free marketability (other than restrictions arising solely by virtue of a stockholdershareholder’s status as an affiliate or former affiliate) shall be to make take into account an appropriate discount (as mutually determined by the Board and holders of at least a majority of the outstanding shares of the Preferred Stock voting as a single class on an as converted to Common Stock basis) from the market value as determined pursuant to clause (1) above so as above in (a) (i), (ii) or (iii) to reflect the approximate fair market value thereof. In any such case, the Board shall notify each holder of shares of Preferred Stock of its determination of the fair value or allocation, as determined the case may be, of such consideration prior to payment or accepting receipt thereof. If, within ten (10) days after receipt of such notice, the holders of a majority of the shares of the Preferred Stock (voting as a single class on an as converted to Common Stock basis) then outstanding shall notify the Board in writing of their objection to such determination, a determination of the fair value of such consideration or allocation, as the case may be, shall be made by a nationally recognized independent investment banking firm acceptable to the Corporation and the holders of at least a majority of the shares of the Preferred Stock then outstanding (voting as a single class on an as converted to Common Stock basis). If the parties are unable to agree on such an investment banking firm, one shall be chosen by two nationally recognized independent investment banking firms, one of which shall be designated by the BoardCorporation and one of which shall be designated by the holders of at least a majority of the shares of the Preferred Stock then outstanding (voting as a single class on an as converted to Common Stock basis). The Corporation shall bear the entire cost of the fees and expenses borne by the parties in such determination of fair market value.

Amount Deemed Paid or Distributed. The funds and assets amount deemed paid or distributed to the holders of capital stock of the Corporation upon any such merger, reorganization, consolidation, sale, transfer or lease, acquisition, transfer, exclusive license, other disposition described in this Section 2 or redemption shall be the cash or the value of the property, rights or securities paid or distributed to such holders by the Corporation or the acquiring person, firm or other entity. The If the amount deemed paid or distributed under this Subsection 2.4.3 is made in property other than in cash, the value of such distribution shall be the fair market value of such property, rights or securities shall be deemed its fair market value. Any securities shall be valued determined as follows: (a) Securities For securities not subject to investment letter letters or other similar restrictions on free marketability covered by (b) below:marketability, (i) If if traded on a securities exchangeexchange or the NASDAQ Stock Market, the value shall be deemed to be the average of the closing prices of the securities on such exchange or market over the twenty (20) 30-trading day period ending three (3) trading days prior to the closing of the Deemed Liquidation Eventsuch transaction; (ii) If if actively traded over-the-counter, the value shall be deemed to be the average of the closing bid or sale prices (whichever is applicable) over the twenty (20) 30-trading day period ending three (3) trading days prior to the closing of the Deemed Liquidation Eventsuch transaction; andor (iii) If if there is no active public market, the value shall be the fair market value thereof, as determined in good faith by the BoardBoard of Directors of the Corporation. (b) The method of valuation of securities subject to investment letter letters or other similar restrictions on free marketability (other than restrictions arising solely by virtue of a stockholder’s status as an affiliate or former affiliate) shall be to make take into account an appropriate discount (as determined in good faith by the Board of Directors of the Corporation) from the market value as determined as above in pursuant to clause (a) (i), (ii) or (iii) above so as to reflect the approximate fair market value thereof, as determined by the Board.

Amount Deemed Paid or Distributed. The funds and assets amount deemed paid or distributed to the holders of capital stock of the Corporation upon any such merger, consolidation, sale, transfer or transfer, exclusive license, other disposition described in this Section 2 or redemption shall be the cash or the value of the property, rights or securities paid or distributed to such holders by the Corporation or the acquiring person, firm or other entity. The value of such property, rights or securities shall be deemed its fair market value. Any determined in good faith by the Board of Directors of the Corporation; provided, however, that any securities not subject to resale restriction (by law, contract or otherwise) shall be valued as followsbased on: (a) Securities not subject to investment letter or other similar restrictions on free marketability covered by (b) below: (i) If if traded on a securities exchangeexchange or the NASDAQ Stock Market, or are quoted on the OTC Bulletin Board quotation system then the value shall be deemed to be the average of the closing prices of the securities on such exchange or NASDAQ or the average of the closing bid prices on the OTC Bulletin Board system, as the case may be, over the twenty thirty (2030) trading day period ending three (3) trading days prior to the closing of the Deemed Liquidation Eventsuch transaction; (iib) If if actively traded over-the-countercounter (which shall mean greater than $100,000 in dollar volume traded per day, determined by multiplying the number of shares traded per day by the daily volume weighted average price as reported by Bloomberg L.P.), the value shall be deemed to be the average of the closing bid or sale prices (whichever is applicable) over the twenty thirty (2030) trading day calendar period ending three (3) trading days prior to the closing of the Deemed Liquidation Eventsuch transaction; andor (iiic) If if there is no active public market, the value shall be the fair market value thereof, as determined in good faith by the BoardBoard of Directors of the Corporation. (b) The method of valuation of securities subject to investment letter or other restrictions on free marketability (other than restrictions arising solely by virtue of a stockholder’s status as an affiliate or former affiliate) shall be to make an appropriate discount from the market value determined as above in (a) (i), (ii) or (iii) to reflect the approximate fair market value thereof, as determined by the Board.

Amount Deemed Paid or Distributed. The funds and assets deemed paid or distributed to the holders of shares in the capital stock of the Corporation Company upon any such merger, consolidation, sale, transfer or other disposition described in this Section 2 Liquidation Trigger Event shall be the cash or the fair market value of the property, rights or securities paid or distributed to such holders by the Corporation Company or the acquiring person, firm or other entity. The value of such property, rights or securities shall be deemed its fair market value. Any securities shall be valued as follows: (a) Securities not subject to investment letter or other similar restrictions on free marketability covered by (b) below: (i) If traded on a securities exchange, the value shall be deemed to be the average of the closing volume weighted average prices of the securities on such exchange over the twenty (20) trading day period ending three (3) trading days prior to the closing effectiveness of the Deemed Liquidation Event; (ii) If actively traded over-the-counter, the value shall be deemed to be the average of the closing volume weighted average bid or sale prices (whichever is applicable) over the twenty (20) trading day period ending three (3) trading days prior to the closing effectiveness of the Deemed Liquidation Event; and (iii) If there is no active public market, the value shall be the fair market value thereof, as reasonably determined by the Board. (b) The method of valuation of securities subject to investment letter or other restrictions on free marketability (other than restrictions arising solely by virtue of a stockholdershareholder’s status as an affiliate or former affiliate) shall be to make an appropriate discount from the market value determined as above in (a) (iSection 2.3.2(a)(i), (ii) or (iii) to reflect the approximate fair market value thereof, as determined by the Board.

Amount Deemed Paid or Distributed. The funds and assets amount deemed paid or distributed to the holders of capital stock shareholders of the Corporation Company upon any such mergerliquidation, consolidationdissolution, sale, transfer or other disposition described in this Section 2 winding up of the Company or any Liquidation Event shall be the cash or the value of the property, rights or securities paid or distributed to such holders by the Corporation Company or the acquiring personPerson. If the amount deemed paid or distributed under this Section 7.12(b) is made in property other than in cash, firm or other entity. The the value of such distribution shall be the fair market value of such property, rights or securities shall be deemed its fair market valuedetermined in good faith by the Board (including the affirmative votes of the Investor Director Majority). Any securities not subjected to investment letter or similar restrictions on free marketability shall be valued as follows: (a) Securities not subject to investment letter or other similar restrictions on free marketability covered by (b) below: (i) If traded on a securities exchange, the value shall be deemed to be the average of the security’s closing prices of the securities on such exchange over the twenty thirty (2030) trading day period ending three one (31) trading days day prior to the closing of the Deemed Liquidation Eventdistribution; (ii) If actively traded over-the-counter, the value shall be deemed to be the average of the closing bid or sale prices (whichever is applicable) over the twenty thirty (2030) trading day period ending three (3) trading days prior to the closing of the Deemed Liquidation Eventdistribution; and (iii) If there is no active public market, the value shall be the fair market value thereof, thereof as determined in good faith by the Board. Board (b) including the affirmative votes of the Investor Director Majority). The method of valuation of securities subject to investment letter or other restrictions on free marketability (other than restrictions arising solely by virtue of a stockholder’s status as an affiliate or former affiliate) shall be adjusted to make an appropriate discount from the market value determined as above in (a) paragraphs (i), (ii) or (iii) to reflect the approximate fair market value thereof, thereof as determined in good faith by the BoardBoard (including the affirmative votes of the Investor Director Majority), or by a liquidator if one is appointed. The Investor Majority shall have the right to challenge any determination by the Board of fair market value pursuant to this Section 7.12(b), in which case the determination of fair market value shall be made by an independent appraiser selected jointly by the Board and the challenging parties, the cost of such appraisal to be borne by the Company.

Amount Deemed Paid or Distributed. The funds and assets deemed paid or distributed to the holders of capital stock of the Corporation upon any such merger, consolidation, sale, transfer or other disposition described in this Section 2 shall be the cash or the value of the property, rights or securities paid or distributed to such holders by the Corporation or the acquiring person, firm or other entity. The value of such property, rights or securities shall be deemed its fair market value. Any securities shall be valued as follows: (a) a. Securities not subject to investment letter or other similar restrictions on free marketability covered by (b) below: (i) If traded on a securities exchange, the value shall be deemed to be the average of the closing prices of the securities on such exchange over the twenty (20) trading day period ending three (3) trading days prior to the closing of the Deemed Liquidation Event; (ii) If actively traded over-the-counter, the value shall be deemed to be the average of the closing bid or sale prices (whichever is applicable) over the twenty (20) trading day period ending three (3) trading days prior to the closing of the Deemed Liquidation Event; and (iii) If there is no active public market, the value shall be the fair market value thereof, as determined by the Board. (b) b. The method of valuation of securities subject to investment letter or other restrictions on free marketability (other than restrictions arising solely by virtue of a stockholder’s status as an affiliate or former affiliate) shall be to make an appropriate discount from the market value determined as above in (a) (i), (ii) or (iii) to reflect the approximate fair market value thereof, as determined by the Board.