Common use of Valuation of Consideration Clause in Contracts

Valuation of Consideration. Before submitting a First Refusal Notice of Sale pursuant to Section 3.4(a) in response to a Third Party Offer that contemplates (i) an acquisition of the First Refusal Shares by the Third Party Offeror for consideration any portion of which is not cash or (ii) an Indirect Transfer, the Selling Stockholders and the other Principal Stockholders shall cause the fair market value of the non-cash consideration to be determined by an investment banking firm in the following manner. The Selling Stockholders shall deliver to each other Principal Stockholder a notice stating that the Selling Stockholders intend to deliver a First Refusal Notice of Sale. The Selling Stockholders and the Principal Stockholder (other than the Selling Stockholders) that, together with its Controlled Affiliates, owns the greatest number of shares of Class B Common Stock, shall each select an investment banking firm and shall instruct the investment banking firms so selected to select a third investment banking firm within 30 days following the delivery of such notice by the Selling Stockholders. The investment banking firm selected in accordance with the foregoing procedure shall submit a written report setting forth its determination of its appraisal of the First Refusal Shares no later than 45 days after the date of its selection. The fees, costs and expenses of the investment banking firms so selected shall be borne by the Selling Stockholders. In determining the fair market value of the non-cash consideration, if applicable, the investment banking firm retained pursuant to this Section 3.6 shall: (A) assume that the fair market value of the applicable non-cash consideration asset is the price at which such asset would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and each having reasonable knowledge of all relevant facts; (B) assume that the applicable non-cash consideration asset would be sold for cash; (C) take into account any applicable control premium relating to the shares to be sold; and (D) use valuation techniques then prevailing in the relevant industry. If the Third Party Offer contemplates a sale of First Refusal Shares or an Indirect Transfer in exchange for tax-deferred consideration, the fair market value of the First Refusal Shares shall not be grossed-up to the extent of any taxes which shall be payable by the Selling Stockholders as a result of a sale of the First Refusal Shares to the First Refusal Electing Stockholders; provided, however, that the parties agree to negotiate in good faith to structure any such transaction in a tax-efficient manner.

Valuation of Consideration. Before submitting a First Refusal (a) If the Offer Consideration does not consist entirely of cash, the Offer Notice of Sale pursuant to Section 3.4(a) in response to a Third Party Offer that contemplates (i) an acquisition must state the good faith evaluation of the First Refusal Shares Selling Stockholder of the Fair Market Value of such noncash consideration as of the date the Offer Notice is given, together with a description of the method by which such evaluation was made and copies of any appraisals or similar reports, if any, on which such evaluation was based. Each statement of Fair Market Value of any noncash consideration stated in the Third Party Offeror Offer Notice shall be binding on the Prospective Purchaser, the Stockholders and the Investors for consideration all purposes of this Article II unless, within ten (10) days after the Offer Notice is given, any portion of which is not cash or (ii) an Indirect TransferInvestor notifies the Selling Stockholder and the other Investors in writing that it objects to any valuation so stated in the Offer Notice. If any Investor makes such a written objection on a timely basis, the Selling Stockholders Stockholder and the Investors shall attempt in good faith to agree on the Fair Market Value of such noncash consideration. If they are unable to so agree within ten (10) Business Days after such notice of objection was given, then within five (5) Business Days thereafter, the Selling Stockholder and the Investors shall select one appraiser satisfying the requirements of Section 4.1 and the Investors and the Selling Stockholder shall submit to such appraiser (and each other) a brief written statement of their respective positions regarding the matter in dispute and supporting arguments, and each shall be given a period of five (5) Business Days thereafter to submit to the other Principal Stockholders shall cause and to the fair market value appraiser a written response to such written statement of the non-cash consideration to be determined by an investment banking firm in the following mannerother. The Selling Stockholders shall deliver to each other Principal Stockholder a notice stating that the Selling Stockholders intend to deliver a First Refusal Notice Such appraiser shall, within fifteen (15) days of Sale. The Selling Stockholders and the Principal Stockholder (other than the Selling Stockholders) that, together with its Controlled Affiliates, owns the greatest number of shares of Class B Common Stock, shall each select an investment banking firm and shall instruct the investment banking firms so selected to select a third investment banking firm within 30 days following the delivery of such notice by the Selling Stockholders. The investment banking firm selected in accordance with the foregoing procedure shall submit a written report setting forth its determination of its appraisal of the First Refusal Shares no later than 45 days after the date of its selection. The fees, costs and expenses resolve such dispute by choosing either the position of the investment banking firms Selling Stockholder set forth in such written statement so selected shall be borne submitted by the Selling Stockholders. In determining Stockholder or the fair market value position of the non-cash considerationInvestors set forth in such written statement so submitted by the Investors, if applicablewhichever in the opinion of the appraiser, in its sole discretion, is more consistent with the investment banking firm retained purposes and intent of this Agreement. Decisions with respect to such determination made pursuant to this Section 3.6 shall: (A2.3(a) assume that by the fair market value Majority Investors shall be binding on all Investors. The determination of the applicable non-cash Fair Market Value of any such noncash consideration asset by agreement of the Selling Stockholder and the Investors or by the appraiser appointed as provided in this Section 2.3(a) and Article IV shall be final and conclusive for all purposes of this Article II. Promptly after the Fair Market Value of any such noncash consideration is finally determined in accordance with this Section 2.3(a), the price Selling Stockholder shall give each Investor a written notice stating such Fair Market Value. (b) If any Related Contract or Transaction was entered into or consummated at which such asset would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy time within the past one (1) year or sell and each having reasonable knowledge of all relevant facts; (B) assume that the applicable non-cash consideration asset would be sold for cash; (C) take into account any applicable control premium relating to the shares is proposed to be sold; and (D) use valuation techniques then prevailing in the relevant industry. If the Third Party Offer contemplates a sale of First Refusal Shares entered into or an Indirect Transfer in exchange for tax-deferred considerationconsummated, the fair market value Offer Notice must also state the good faith evaluation of the First Refusal Shares shall Selling Stockholder of the Fair Market Value, as of the date received or, if not yet received, as of the date the Offer Notice is given, of the maximum aggregate consideration and benefits received or to be grossed-up to the extent of any taxes which shall be payable received by the Selling Stockholders as a result Stockholder or any of a sale its direct or indirect Affiliates, Related Parties or designees or beneficiaries by virtue of such Related Contract or Transaction and of the First Refusal Shares minimum amount of property, services or other consideration received or to be received by the First Refusal Electing Stockholders; providedProspective Purchaser in consideration thereof, howevertogether with a description of the method by which such evaluation was made and copies of any appraisals or similar reports, if any, on which such evaluation was based. If any Investor, within ten (10) days after any Offer Notice is given, notifies the Selling Stockholder and the other Investors in writing that it believes, in good faith, that either (i) the parties agree Per-Share Offer Consideration stated in the Offer Notice has not been properly calculated in accordance with the last sentence of Section 2.2(a) or (ii) absent any Related Contract or Transaction described in the Offer Notice (or otherwise known to negotiate such Investor), the amount of consideration which would be offered or paid for the Offered Shares would be higher, so that the Per-Share Offer Consideration stated in the Offer Notice should be increased to include all or part of the consideration and benefits received or to be received by the Selling Stockholder or any of its direct or indirect Affiliates, Related Parties or designees or beneficiaries by virtue of such Related Contract or Transaction, then the Selling Stockholder and the Investors shall attempt in good faith to structure resolve the issue. If they are unable to so agree within ten (10) Business Days after such notice was given, then within five (5) Business Days thereafter, the Selling Stockholder and the Investors shall select one appraiser satisfying the requirements of Section 4.1 and the Investors and the Selling Stockholder shall submit to such appraiser (and each other) a brief written statement of their position regarding the matter in dispute and supporting arguments, and each shall be given a period of five (5) Business Days thereafter to submit to the other and to the appraiser a written response to such written statement of the other. Such appraiser shall, within fifteen (15) days of the date of its selection, resolve such dispute by choosing either the position of the Selling Stockholder set forth in such written statement so submitted by the Selling Stockholder or the position of the Investors set forth in such written statement so submitted by the Investors, whichever in the opinion of the appraiser, in its sole discretion, is more consistent with the purposes and intent of this Agreement. Decisions made pursuant to this Section 2.3(b) by the Majority Investors shall be binding on all Investors. The determination of any dispute referred to in this Section 2.3(b) by agreement of the Selling Stockholder and the Investors or by an appraiser appointed as provided in this Section 2.3(b) and Article IV shall be final and conclusive for all purposes of this Article II. If, after the completion of the procedures specified above in this Section 2.3(b), it is finally determined that the Per-Share Offer Consideration stated in the Offer Notice should be increased, then references hereinafter in this Agreement to the "Per-Share Offer Consideration" shall be such stated Per-Share Offer Consideration as so increased. Promptly after any dispute referred to in this Section 2.3(b) is resolved as provided in this Section, the Selling Stockholder shall give each Investor a written notice describing such resolution and, if the Per-Share Offer Consideration stated in the Offer Notice was increased, stating such increased Per-Share Offer Consideration. (c) If more than one Shareholder proposes to Dispose of Common Stock or Rights to the same Prospective Purchaser as part of a single transaction in or a tax-efficient mannernumber of concurrent transactions on substantially the same terms and conditions, then such Shareholders shall be considered a single Selling Stockholder for purposes of the provisions of this Article II.