Common use of Fair Market Value of Repurchased Securities Clause in Contracts

Fair Market Value of Repurchased Securities. (a) The "Fair Market Value" of Common Units subject to repurchase hereunder shall be determined in accordance with this Section 3.5. (b) The Managing Member of the Company and the Executive shall attempt in good faith to agree on the Fair Market Value of the Common Units to be repurchased. Any agreement reached by such Persons shall be final and binding on all parties hereto. (c) If such Persons are unable to reach such agreement within 20 days after the giving of the Repurchase Notice, the Fair Market Value of the Common Units if they are then publicly traded shall be the average of the closing prices of the sales of such Common Units on the principal securities exchange on which the Common Units may at the time be listed, or, if there have been no sales on such exchange on any day, the average of the highest bid and lowest asked prices on such exchanges at the end of such day, or, if on any day the Common Units are not so listed, the average of the representative bid and asked prices quoted in the Nasdaq System as of 4:00 P.M., New York time, or, if on any day the Common Units are not quoted in the Nasdaq System, the average of the highest bid and lowest asked prices on such day in the domestic over-the-counter market as reported by the National Quotation Bureau Incorporated, or any similar successor organization, in each such case averaged over a period of 21 days consisting of the day as of which the Fair Market Value is being determined and the 20 consecutive business days prior to such day. (d) If such Persons are unable to reach agreement pursuant to clause (b) above within 20 days after the giving of the Repurchase Notice, and to the extent the Common Units are not publicly traded, then the Company and Executive shall each, within 10 days of such 20 day period, submit the determination of the Fair Market Value to an investment bank or other similar third party experienced in the valuation of securities, selected by the Company, with no affiliation with the Company, the Managing Member, the Subsidiaries or their respective Affiliates (the "Bank"), which Bank shall value the Common Units. The Bank shall, within 30 days following its engagement, determine the Fair Market Value of the Common Units, utilizing valuation methodologies which are most commonly used by investment bankers in valuing interests such as the Common Units, and such determination shall be final and binding on all parties hereto. Notwithstanding the foregoing, if (i) during the 90-day period preceding the delivery by the Company of a Repurchase Notice, a Bank has made a Fair Market Value determination and (ii) no (A) Capital Event, (B) refinancing of the Credit Agreement (as defined below), or (C) sale of all or substantially all of the assets or a majority of the outstanding equity interests of any individual subsidiary of Coffeyville Resources, LLC has occurred since such Bank's determination, then such prior determination shall be final and biding on all parties hereto. The Company agrees to provide information reasonably requested by the Executive in order to make a determination of the Fair Market Value; provided however, that the Company is under no obligation to provide confidential information. (e) The Company and Executive shall pay their own fees, costs and expenses relating to the determination of Fair Market Value pursuant to this Section 3.5. The Company shall pay the costs of the Bank in connection with the Bank's determination of Fair Market Value. (f) Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Common Units is finally determined by the Bank to be an amount at least 25% greater than the Company Price set forth in the Repurchase Notice, the Company shall have the right to revoke its exercise of the Repurchase Option for all or any portion of the Common Units elected to be repurchased by it by delivering notice of such revocation in writing to the Executive during the thirty-day period beginning on the date that the Company is given written notice that the Fair Market Value of a unit of Common Units was finally determined to be an amount at least 25% greater than the per unit repurchase price for Common Units set forth in the Repurchase Notice.

Fair Market Value of Repurchased Securities. (a) The "Fair Market Value" of Common Units Executive Securities subject to repurchase hereunder shall be determined in accordance with this Section 3.5.paragraph (e) as follows: (bi) The Managing Member Board of the Company LLC and the holders of a majority of the Executive Securities to be repurchased shall attempt in good faith to agree on the Fair Market Value of the Common Units to be repurchasedExecutive Securities. Any agreement reached by such Persons shall be final and binding on all parties hereto. (cii) If such Persons are unable to reach such agreement within 20 days after the giving of the a Repurchase Notice, the Fair Market Value of the Common Units if they any Executive Securities that are then publicly traded shall be the average, over a period of 21 days consisting of the date of the applicable Repurchase Event and the 20 consecutive business days prior to that date, of the average of the closing prices of the sales of such Common Units securities on the principal all securities exchange exchanges on which the Common Units such securities may at the that time be listed, or, if there have been no sales on any such exchange on any day, the average of the highest bid and lowest asked prices on all such exchanges at the end of such day, or, if on any day the Common Units such securities are not so listed, the average of the representative bid and asked prices quoted in the Nasdaq System as of 4:00 P.M., New York time, or, if on any day the Common Units such securities are not quoted in the Nasdaq System, the average of the highest bid and lowest asked prices on such day in the domestic over-the-counter market as reported by the National Quotation Bureau Incorporated, or any similar successor organization, in each such case averaged over a period of 21 days consisting of the day as of which the Fair Market Value is being determined and the 20 consecutive business days prior to such day. (diii) If such Persons are unable to reach agreement pursuant to clause paragraph (bii) above within 20 days after the giving of the a Repurchase Notice, and to the extent the Common Units any Executive Securities are not publicly traded, then : (A) The Board of the Company LLC and the holders of a majority of the Executive Securities shall each, at the same time, within 10 days thereafter, choose one investment banker or other appraiser with experience in analyzing and making determinations concerning matters in the telecommunications industry and in valuing entities like the LLC (including the distribution arrangements of the type described in the LLC Agreement), and, within 15 days of their selection, the two investment bankers/appraisers so selected shall together select a third investment banker/appraiser similarly qualified. (B) The three investment bankers/appraisers shall first appraise the fair market value of the Corporation (based on the assumption of an orderly, arm's length sale to a willing unaffiliated buyer). Each of the three investment bankers/appraisers shall then independently appraise the fair market value of such 20 day periodnon-publicly- traded Executive Securities as follows: (1) the fair market value of each share of Common Stock shall be equal to the fair market value of the Corporation divided by the total number of shares of Common Stock outstanding on the date of the applicable Repurchase Event (determined on a fully diluted basis (x) with respect to all outstanding securities convertible into the Corporation's Common Stock, submit assuming the conversion of such convertible securities (without regard to any conditions or other restrictions on such conversion), and (y) with respect to all outstanding options, warrants and other rights or securities exercisable or exchangeable for shares of the Corporation's Common Stock, in accordance with the Treasury Stock Method under generally accepted accounting principles for determination of fully diluted earnings per share); (2) the Fair Market Value fair market value of each Class B Unit shall be equal to an investment bank the fair market value of the assets (as determined in accordance with paragraphs (B)(1) and (B)(3)) that would be distributed according to the terms of the LLC Agreement with respect to such Class B Unit if the LLC were dissolved on the date of the applicable Repurchase Event; and (3) the fair market value of any other non-publicly- traded Executive Securities (or, for purposes of paragraph (B)(2) above, any other assets) shall be the fair market value of such securities (or other similar third party experienced in the valuation of securities, selected by the Company, with no affiliation with the Company, the Managing Member, the Subsidiaries or their respective Affiliates (the "Bank"assets), which Bank shall value determined on the Common Unitsbasis of an orderly, arm's length sale to a willing, unaffiliated buyer, taking into account all relevant factors determinative of value. The Bank three investment bankers/appraisers shall, within 30 thirty days following of their retention, provide the written results of such appraisals to the LLC and/or its engagement, determine assignees and to each of the holders of Executive Securities. (C) The "Fair Market Value Value" of the Common Units, utilizing valuation methodologies which are most commonly used by investment bankers in valuing interests such as non-publicly-traded Executive Securities to be repurchased shall be the Common Unitsaverage of the two appraisals closest to each other, and such determination amount shall be final and binding on all parties hereto. Notwithstanding the foregoing, if (i) during the 90-day period preceding the delivery by the Company of a Repurchase Notice, a Bank has made a Fair Market Value determination and (ii) no (A) Capital Event, (B) refinancing of the Credit Agreement (as defined below), or (C) sale of all or substantially all of the assets or a majority of the outstanding equity interests of any individual subsidiary of Coffeyville Resources, LLC has occurred since such Bank's determination, then such prior determination shall be final and biding on all parties hereto. The Company agrees to provide information reasonably requested by the Executive in order to make a determination of the Fair Market Value; provided however, that the Company is under no obligation to provide confidential information. LLC (eand/or any assignee) The Company and Executive shall pay their own fees, costs and expenses relating to the may at any time within ten days after receiving written notice of such determination of Fair Market Value pursuant to this Section 3.5. The Company shall pay the costs of the Bank in connection with the Bank's determination of Fair Market Value. (f) Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of Common Units is finally determined by the Bank to be an amount at least 25% greater than the Company Price set forth in the Repurchase Notice, the Company shall have the right to revoke rescind its prior exercise of the Repurchase Option for all or any portion of the Common Units elected to be repurchased by it by delivering giving written notice of such revocation in writing to all of the holders of the Executive Securities to be repurchased, and upon such revocation the revoking party will be treated as if it had never exercised such Repurchase Option (it being understood that such revoking parties shall thereafter have no right to re-exercise such Repurchase Option). (D) The costs of such appraisal shall be allocated between the parties based on the percentage which the portion of the Contested Amount not awarded to each party bears to the Executive during amount actually contested by such party; provided that if any parties revoke their exercise of the thirty-day period beginning Repurchase Option pursuant to paragraph (C) above, such revoking parties shall bear (pro rata among such revoking parties based on the date number of Executive Securities with respect to which each such revoking party had initially exercised its Repurchase Option) any appraisal costs that would be allocated to the Company is given written notice that holder(s) of Executive Securities under this paragraph (D). "Contested Amount" means the Fair Market Value difference between the valuations of a unit of Common Units was finally determined to be an amount at least 25% greater than the per unit repurchase price for Common Units set forth in the Repurchase Noticedisputing parties.