Common use of Definition of Fair Market Value Clause in Contracts

Definition of Fair Market Value. For purposes of this Agreement, “Fair Market Value” means, as of any specified date, (i) if the equity interests are listed on a national securities exchange, the closing sales price of the equity interests, as reported on the stock exchange composite tape on such date (or if no sales occur on that date, on the last preceding date on which such sales of the equity interests are so reported); (ii) if the equity interests are not traded on a national securities exchange but are traded over the counter at the time a determination of its Fair Market Value is required to be made, the average between the reported high and low bid and asked prices of the equity interests on the most recent date on which equity interests were publicly traded; or (iii) in the event the equity interests are not publicly traded at the time a determination of value is required to be made, the determination of Fair Market Value shall be determined by averaging (using a weighted-average based upon the total upfront consideration paid in each such acquisition) the issuance prices used in the three most recent acquisition transactions completed by the Company and in which equity was used as consideration (as adjusted by the Board if the Board determines in good faith and can reasonably demonstrate that there have been material and sustained changes to the Company’s business or prospects and that such changes should be factored into determining such valuation), provided that, where applicable, such a determination will also take into consideration the rules of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and any regulations promulgated thereunder (together, “Section 409A”).