Common use of Fair Market Value Calculation Clause in Contracts

Fair Market Value Calculation. Notwithstanding the definition of “Fair Market Value” contained in the Management Shareholders Agreement, in the event that (x) pursuant to an application of Article 5 of the Management Shareholders Agreement the Board determines the Fair Market Value of a Termination Security (as defined in the Management Shareholders Agreement) pursuant to clause (b) of such definition of Fair Market Value (such determination, the “Board Determination”), the following provisions shall apply: (a) if Executive disagrees with the Board Determination, Executive may, within ten days after receiving notice of the Board Determination, deliver a notice to the Board disagreeing with the Board Determination. (b) If Executive delivers such a disagreement notice to the Board in such ten-day period, Executive and the Board shall, during the 15 days following such delivery, use their commercially reasonable efforts to negotiate an agreement as to the “Fair Market Value” of such Termination Security. If Executive does not deliver a notice to the Board in such ten-day period disagreeing with the Board Determination, the Board Determination shall be final and binding on Executive. (c) If during the 15-day negotiation period described in Section 23(b), Executive and the Board are unable to negotiate an agreement, the Company shall promptly thereafter engage an independent appraiser or valuation firm mutually and reasonably acceptable to Executive and the Board (the “Referee”) to determine the fair market value of the Termination Security (it being understood that in making such determination, the Referee shall be functioning as an expert and not as an arbitrator and shall use the Valuation Methodology (as defined in the Management Shareholders Agreement). The Referee shall deliver to Executive and the Board as promptly as practicable (but no later than 30 days from the date of engagement of the Referee) a report setting forth its reasoned written determination as to the fair market value of the Termination Security (the “Referee Determination”). The Referee Determination shall be final and binding upon Executive and the Board. Each party shall bear its own expenses in connection with any application of this Section 23, except that the fees and expenses of the Referee (including, but not limited to, the fees and expenses of any counsel or other advisors retained by the Referee) (collectively, the “Referee Expenses”) shall be paid as follows: (i) if the Referee Determination is equal to or between 95% and 105% of the Board Determination, each of Executive and the Company shall pay one half of the Referee Expenses, (ii) if the Referee Determination is less than 95% of the Board Determination, Executive shall pay the Referee Expenses, and (iii) if the Referee Determination is greater than 105% of the Board Determination, the Company shall pay the Referee Expenses.

Fair Market Value Calculation. Notwithstanding the definition of “Fair Market Value” contained in the Management Shareholders Agreement, in the event that (x) pursuant to an application of Article 5 of the Management Shareholders Agreement the Board determines the Fair Market Value of a Termination Security (as defined in the Management Shareholders Agreement) pursuant to clause (b) of such definition of Fair Market Value (such determination, the “Board Determination”), the following provisions shall apply: (a) if Executive disagrees with the Board Determination, the Executive may, within ten days after receiving notice of the Board Determination, deliver a notice to the Board disagreeing with the Board Determination. (b) If Executive delivers such a disagreement notice to the Board in such ten-day period, the Executive and the Board shall, during the 15 days following such delivery, use their commercially reasonable efforts to negotiate an agreement as to the “Fair Market Value” of such Termination Security. If Executive does not deliver a notice to the Board in such ten-day period disagreeing with the Board Determination, the Board Determination shall be final and binding on Executive. (c) If during the 15-day negotiation period described in Section 23(b), Executive and the Board are unable to negotiate an agreement, the Company shall promptly thereafter engage an independent appraiser or valuation firm mutually and reasonably acceptable to Executive and the Board (the “Referee”) to determine the fair market value of the Termination Security (it being understood that in making such determination, the Referee shall be functioning as an expert and not as an arbitrator and shall use the Valuation Methodology (as defined in the Management Shareholders Agreement). The Referee shall deliver to Executive and the Board as promptly as practicable (but no later than 30 days from the date of engagement of the Referee) a report setting forth its reasoned written determination as to the fair market value of the Termination Security (the “Referee Determination”). The Referee Determination shall be final and binding upon Executive and the Board. Each party shall bear its own expenses in connection with any application of this Section 23, except that the fees and expenses of the Referee (including, but not limited to, the fees and expenses of any counsel or other advisors retained by the Referee) (collectively, the “Referee Expenses”) shall be paid as follows: (i) if the Referee Determination is equal to or between 95% and 105% of the Board Determination, each of Executive and the Company shall pay one half of the Referee Expenses, (ii) if the Referee Determination is less than 95% of the Board Determination, Executive shall pay the Referee Expenses, and (iii) if the Referee Determination is greater than 105% of the Board Determination, the Company shall pay the Referee Expenses.

Fair Market Value Calculation. Notwithstanding the definition of “Fair Market Value” contained in the Management Shareholders Agreement, in the event that (x) pursuant to an application of Article 5 of the Management Shareholders Agreement the Board determines the Fair Market Value of a Termination Security (as defined in the Management Shareholders Agreement) pursuant to clause (b) of such definition of Fair Market Value (such determination, the “Board Determination”), the following provisions shall apply: (a) if Executive disagrees with the Board Determination, Executive may, within ten days after receiving notice of the Board Determination, deliver a notice to the Board disagreeing with the Board Determination. (b) If Executive delivers such a disagreement notice to the Board in such ten-day period, Executive and the Board shall, during the 15 days following such delivery, use their commercially reasonable efforts to negotiate an agreement as to the “Fair Market Value” of such Termination Security. If Executive does not deliver a notice to the Board in such ten-day period disagreeing with the Board Determination, the Board Determination shall be final and binding on Executive. (c) If during the 15-day negotiation period described in Section 23(b24(b), Executive and the Board are unable to negotiate an agreement, the Company shall promptly thereafter engage an independent appraiser or valuation firm mutually and reasonably acceptable to Executive and the Board (the “Referee”) to determine the fair market value of the Termination Security (it being understood that in making such determination, the Referee shall be functioning as an expert and not as an arbitrator and shall use the Valuation Methodology (as defined in the Management Shareholders Agreement). The Referee shall deliver to Executive and the Board as promptly as practicable (but no later than 30 days from the date of engagement of the Referee) a report setting forth its reasoned written determination as to the fair market value of the Termination Security (the “Referee Determination”). The Referee Determination shall be final and binding upon Executive and the Board. Each party shall bear its own expenses in connection with any application of this Section 2324, except that the fees and expenses of the Referee (including, but not limited to, the fees and expenses of any counsel or other advisors retained by the Referee) (collectively, the “Referee Expenses”) shall be paid as follows: (i) if the Referee Determination is equal to or between 95% and 105% of the Board Determination, each of Executive and the Company shall pay one half of the Referee Expenses, (ii) if the Referee Determination is less than 95% of the Board Determination, Executive shall pay the Referee Expenses, and (iii) if the Referee Determination is greater than 105% of the Board Determination, the Company shall pay the Referee Expenses.

Fair Market Value Calculation. Notwithstanding the definition of “Fair Market Value” contained in the Management Shareholders Agreement, in the event that (x) pursuant to an application of Article 5 of the Management Shareholders Agreement the Board determines the Fair Market Value of a Termination Security (as defined in the Management Shareholders Agreement) pursuant to clause (b) of such definition of Fair Market Value (such determination, the “Board Determination”), the following provisions shall apply: (a) if Executive disagrees with the Board Determination, the Executive may, within ten days after receiving notice of the Board Determination, deliver a notice to the Board disagreeing with the Board Determination. (b) If Executive delivers such a disagreement notice to the Board in such ten-day period, the Executive and the Board shall, during the 15 days following such delivery, use their commercially reasonable efforts to negotiate an agreement as to the “Fair Market Value” of such Termination Security. If Executive does not deliver a notice to the Board in such ten-day period disagreeing with the Board Determination, the Board Determination shall be final and binding on Executive. (c) If during the 15-day negotiation period described in Section 23(b24(b), Executive and the Board are unable to negotiate an agreement, the Company shall promptly thereafter engage an independent appraiser or valuation firm mutually and reasonably acceptable to Executive and the Board (the “Referee”) to determine the fair market value of the Termination Security (it being understood that in making such determination, the Referee shall be functioning as an expert and not as an arbitrator and shall use the Valuation Methodology (as defined in the Management Shareholders Agreement). The Referee shall deliver to Executive and the Board as promptly as practicable (but no later than 30 days from the date of engagement of the Referee) a report setting forth its reasoned written determination as to the fair market value of the Termination Security (the “Referee Determination”). The Referee Determination shall be final and binding upon Executive and the Board. Each party shall bear its own expenses in connection with any application of this Section 2324, except that the fees and expenses of the Referee (including, but not limited to, the fees and expenses of any counsel or other advisors retained by the Referee) (collectively, the “Referee Expenses”) shall be paid as follows: (i) if the Referee Determination is equal to or between 95% and 105% of the Board Determination, each of Executive and the Company shall pay one half of the Referee Expenses, (ii) if the Referee Determination is less than 95% of the Board Determination, Executive shall pay the Referee Expenses, and (iii) if the Referee Determination is greater than 105% of the Board Determination, the Company shall pay the Referee Expenses.