Common use of Determination of Fair Market Value per Share Clause in Contracts

Determination of Fair Market Value per Share. For purposes hereof, “Fair Market Value per Share” as of any date shall mean the price per Share at which a willing buyer and a willing seller, with neither under compulsion to act, then would buy and sell the Shares subject to purchase hereunder, assuming the continuation of the Company as a going concern, as determined by agreement of the buyer and seller, or if they are unable to so agree, by an independent appraiser experienced in valuations of privately held businesses who is selected by the Company by the majority vote of its Board of Directors after the date as of which such value is to be determined hereunder, with the Shareholder or Transferee whose Shares are subject to the Prohibited Transfer or, as the case may be, the Nominee designated pursuant to Paragraph 1.2(b) by such Shareholder or such Transferee and any other subsequent holder(s) of Shares originally issued to such Shareholder, abstaining from acting as a director on the matter, as may be applicable (the “Appraiser”). In determining the Fair Market Value per Share, the Appraiser shall apply any appropriate minority, marketability or other discounts except in the case of a Prohibited Transfer by reason of the death of a Shareholder or Transferee. In such case, the Appraiser shall value the Company as if its stock were sold in one transaction as of the date of such death, and then divide that value by the number of shares outstanding as of such date and there shall be no control premium or minority discount applied to a particular block of stock, although a marketability discount for the Company as a whole may be applicable, in the discretion of the Appraiser. For the purposes of this Agreement, the determination of the Fair Market Value per Share by the Appraiser shall be conclusive and binding on all interested Persons. The Company shall bear the entire cost of each appraisal performed pursuant hereto.

Determination of Fair Market Value per Share. For purposes hereof, “(a) In any circumstance in which the Fair Market Value per Share” as of any date shall mean the price per Share at which a willing buyer and a willing selleris required to be determined in this Agreement, with neither under compulsion to act, then would buy and sell the Shares subject to purchase hereunder, assuming the continuation of the Company as a going concern, as determined by agreement of the buyer and seller, or if they are unable to so agree, by an independent appraiser experienced in valuations of privately held businesses who is selected by the Company by the majority vote of its Board of Directors after not later than ten (10) days following the date as of which such value determination is required (and in any event prior to be determined hereunderissuing any shares of Common Stock, with the Shareholder any Convertible Securities or Transferee whose Shares are subject to the Prohibited Transfer or, as the case may beany Option Securities), the Nominee designated pursuant Company shall cause the Board of Directors of the Company to Paragraph 1.2(bdetermine in good faith the Fair Market Value per Share. Within five (5) Business Days of such determination by the Board of Directors of the Company (but in no event later than thirty (30) days prior to issuance of Common Stock, Convertible Securities or Option Securities), the Company shall give the Holders written notice of the proposed Fair Market Value per Share. If the Company and such Shareholder or such Transferee and any other subsequent holder(s) of Shares originally issued to such Shareholder, abstaining from acting as a director on the matter, as may be applicable (the “Appraiser”). In determining Holders agree upon the Fair Market Value per Share, the Appraiser shall apply any appropriate minority, marketability or other discounts except in the case of a Prohibited Transfer by reason of the death of a Shareholder or Transferee. In such case, the Appraiser shall value the Company as if its stock were sold in one transaction as of the date of such death, and then divide that value by the number of shares outstanding as of such date and there shall be no control premium or minority discount applied to a particular block of stock, although a marketability discount for the Company as a whole may be applicable, in the discretion of the Appraiser. For the purposes of this Agreement, the determination of the Fair Market Value per Share by the Appraiser shall be as so agreed. If the Company and the Required Holders do not agree upon such Fair Market Value per Share, then the Fair Market Value per Share shall be determined as provided in Section 16(b). (b) If the Required Holders and the Company do not agree upon such Fair Market Value per Share, then the Required Holders and the Company shall appoint a recognized investment banking firm of national reputation, reasonably acceptable to the Required Holders and the Company. If the Company and the Required Holders cannot agree on the appointment of a mutually acceptable investment banking firm, then the Required Holders and the Company shall each choose one such investment banking firm and the respective firms so chosen shall appoint another recognized investment banking firm of national reputation. The investment banking firm so selected shall appraise the value of the Company (which shall be in the form of a written report signed by such investment banking firm), and such appraised value of the Company determined as herein provided shall be final and conclusive and binding on all interested Personsthe Company and the Holders. The Company All fees and expenses of such investment banking firm shall bear be paid by the entire cost of each appraisal performed pursuant heretoCompany.