Common use of Valuation Procedure Clause in Contracts

Valuation Procedure. Whenever the value of the Shares must be determined pursuant to Section 4.2 hereof, within ten (10) days after notice is given by University, University and Licensee shall attempt to agree upon the selection of a disinterested independent qualified investment banking firm or other disinterested independent qualified appraiser (the “Appraiser”) to determine the fair market value of such Shares. If the parties are able to agree upon an Appraiser, then such Appraiser will be instructed to furnish a written valuation or appraisal (an “Appraisal”) within thirty (30) days after its selection. If the parties are unable to agree upon the selection of an Appraiser within a ten (10) day period, then University and Licensee will, within five (5) days after the end of such ten (10) day period, each select an Appraiser to determine the fair market value of such Shares. If either University or Licensee fails to so select an Appraiser, the Appraisal of the Appraiser selected by the other shall determine the fair market value of such Shares. If the higher of the two Appraisals is not more than one hundred ten percent (110%) of the lower Appraisal, then the fair market value of such Shares will be the arithmetic average of the two Appraisals. If the higher of the two Appraisals is equal to or greater than one hundred ten percent (110%) of the lower Appraisal, then the two Appraisers shall, within ten (10) days after the issuance of their respective reports, select a third Appraiser to determine the fair market value of such Shares. The third Appraiser will be instructed to issue a written Appraisal within thirty (30) days after this selection. The third Appraisal shall be arithmetically averaged with the two Appraisals, and the Appraisal furthest from the average of all three Appraisals will be disregarded. The arithmetic average of the two remaining Appraisals will be the fair market value of such Shares. Each Appraiser engaged to provide an Appraisal pursuant hereto will be instructed (i) to include therein a statement of the criteria applied and assumptions made to determine the fair market value of the Shares, (ii) to arrive at a single calculation of such fair market value rather than alternative calculations or a range of calculations, and (iii) not to attribute a premium or discount based on the fact that the Shares being valued constitutes a majority or less than a majority of the total issued and outstanding Shares of Licensee. Any Appraisal by an Appraiser that fails to follow the instructions set forth in this Exhibit C shall not constitute an Appraisal for purposes of this Agreement; except that the failure of an Appraiser to complete an Appraisal within thirty (30) days as instructed shall not affect the validity of such Appraiser’s Appraisal. The cost of Appraisal or Appraisals under the first redemption of stock by the University shall be paid as follows: Licensee shall pay for the cost of the first Appraiser. If a second Appraiser is required, University shall pay the cost of the second Appraiser. If a third Appraiser is required, Licensee and University shall share equally the cost of the third Appraiser. With respect to any subsequent redemption of stock in which any Appraiser is engaged, University shall bear the complete cost of such Appraiser or Appraisers. In lieu of determining the Redemption Price for the Shares by Appraisal, Licensee and University may negotiate and stipulate a Redemption Price on terms mutually acceptable to such parties. * Confidential Treatment Requested i THIS LICENSE AGREEMENT is made and entered into as of this 17th day of April 1996, by and between EMORY UNIVERSITY, a Georgia nonprofit corporation with offices at 0000 Xxxxx Xxxxxx Xxxx, X.X., Xxxxxxx, Xxxxxxx 00000, (hereinafter referred to as “EMORY”), and TRIANGLE PHARMACEUTICALS, INC., a for profit Delaware corporation with principal offices located at 0 Xxxxxxxxxx Xxxxx, 0000 Xxxxxxxxxx Xxxxx, Xxxxxx, XX 00000 (hereinafter referred to as “COMPANY”).

Valuation Procedure. Whenever the value of the Shares must be determined pursuant to Section 4.2 hereof, within ten (10) days after notice is given by University, University and Licensee shall attempt to agree upon the selection of a disinterested independent qualified investment banking firm or other disinterested independent qualified appraiser (the “Appraiser”) to determine the fair market value of such Shares. If the parties are able to agree upon an Appraiser, then such Appraiser will be instructed to furnish a written valuation or appraisal (an “Appraisal”) within thirty (30) days after its selection. If the parties are unable to agree upon the selection of an Appraiser within a ten (10) day period, then University and Licensee will, within five (5) days after the end of such ten (10) day period, each select an Appraiser to determine the fair market value of such Shares. If either University or Licensee fails to so select an Appraiser, the Appraisal of the Appraiser selected by the other shall determine the fair market value of such Shares. If the higher of the two Appraisals is not more than one hundred ten percent (110%) of the lower Appraisal, then the fair market value of such Shares will be the arithmetic average of the two Appraisals. If the higher of the two Appraisals is equal to or greater than one hundred ten percent (110%) of the lower Appraisal, then the two Appraisers shall, within ten (10) days after the issuance of their respective reports, select a third Appraiser to determine the fair market value of such Shares. The third Appraiser will be instructed to issue a written Appraisal within thirty (30) days after this selection. The third Appraisal shall be arithmetically averaged with the two Appraisals, and the Appraisal furthest from the average of all three Appraisals will be disregarded. The arithmetic average of the two remaining Appraisals will be the fair market value of such Shares. Each Appraiser engaged to provide an Appraisal pursuant hereto will be instructed (i) to include therein a statement of the criteria applied and assumptions made to determine the fair market value of the Shares, (ii) to arrive at a single calculation of such fair market value rather than alternative calculations or a range of calculations, and (iii) not to attribute a premium or discount based on the fact that the Shares being valued constitutes a majority or less than a majority of the total issued and outstanding Shares of Licensee. Any Appraisal by an Appraiser that fails to follow the instructions set forth in this Exhibit C shall not constitute an Appraisal for purposes of this Agreement; except that the failure of an Appraiser to complete an Appraisal within thirty (30) days as instructed shall not affect the validity of such Appraiser’s Appraisal. The cost of Appraisal or Appraisals under the first redemption of stock by the University shall be paid as follows: Licensee shall pay for the cost of the first Appraiser. If a second Appraiser is required, University shall pay the cost of the second Appraiser. If a third Appraiser is required, Licensee and University shall share equally the cost of the third Appraiser. With respect to any subsequent redemption of stock in which any Appraiser is engaged, University shall bear the complete cost of such Appraiser or Appraisers. In lieu of determining the Redemption Price for the Shares by Appraisal, Licensee and University may negotiate and stipulate a Redemption Price on terms mutually acceptable to such parties. * Confidential Treatment Requested i THIS LICENSE AGREEMENT is made and entered into as of this 17th day of April 1996, by and between EMORY UNIVERSITY, a Georgia nonprofit corporation with offices at 0000 Xxxxx Xxxxxx Xxxx, X.X., Xxxxxxx, Xxxxxxx 00000, (hereinafter referred to as “EMORY”), and TRIANGLE PHARMACEUTICALS, INC., a for profit Delaware corporation with principal offices located at 0 Xxxxxxxxxx Xxxxx, 0000 Xxxxxxxxxx Xxxxx, Xxxxxx, XX 00000 (hereinafter referred to as “COMPANY”).

Valuation Procedure. Whenever The following is the "Valuation Procedure" to be utilized in determining the purchase price of an Interest (but only if there is a specific reference to using the Valuation Procedure). The purchase price for such Interest is the amount agreed to between the seller and the purchaser. If the seller and the purchaser are unable to agree on the purchase price within 30 days after the event giving rise to the purchase occurs, the purchase price is the appraised value of the Shares must Interest, which appraised value is to be determined pursuant to Section 4.2 hereof, within ten (10) days after notice is given by University, University and Licensee shall attempt to agree upon the selection following appraisal procedure. For purposes of a disinterested independent qualified investment banking firm or other disinterested independent qualified appraiser (determining the “Appraiser”) to determine the fair market appraised value of such Sharesthe Interest being acquired, the seller and the purchaser are to appoint by mutual agreement an appraiser that is experienced in the appraisal on a going concern basis and a liquidation basis of properties similar to the Interest and similar to the properties (including stock in Subsidiaries, if any) owned by the Company and its Subsidiaries (computed on an aggregate basis). If the parties are able to seller and the purchaser cannot agree upon on an Appraiser, then such Appraiser will be instructed to furnish a written valuation or appraisal (an “Appraisal”) appraiser within thirty (30) days after its selection. If the parties are unable to agree upon the selection of an Appraiser within a ten (10) day period, then University and Licensee will, within five (5) 15 days after the end of such ten the 30 day period referenced above, then the seller and the purchaser are to each appoint an appraiser meeting the criteria set forth above. Each appraiser so chosen, within 45 days following its appointment, is to independently determine and submit to the seller and the purchaser, in writing with reasons in support thereof, an appraisal of the Interest as set forth herein (10) day periodwithout any discounts being applied thereto, each select an Appraiser to determine including minority discounts, and taking into account all Debts of the Company). If one appraisal is required, then the net fair market value of such Sharesis to be based on that appraisal. If either University or Licensee fails to so select an Appraiser, the Appraisal of the Appraiser selected by the other shall determine the fair market value of such Shares. If two appraisals are required and if the higher of appraisal does not exceed the two Appraisals is not lower appraisal by more than one hundred ten percent (110%) of the lower Appraisalpercent, then the fair market value of such Shares will be the arithmetic average of the two Appraisals. If the higher of the two Appraisals is equal to or greater than one hundred ten percent (110%) of the lower Appraisal, then the two Appraisers shall, within ten (10) days after the issuance of their respective reports, select a third Appraiser to determine the fair market value of such Shares. The third Appraiser will be instructed to issue a written Appraisal within thirty (30) days after this selection. The third Appraisal shall be arithmetically averaged with the two Appraisals, and the Appraisal furthest from the average of all three Appraisals will be disregarded. The arithmetic average of the two remaining Appraisals will be the fair market value of such Shares. Each Appraiser engaged to provide an Appraisal pursuant hereto will be instructed (i) to include therein a statement of the criteria applied and assumptions made to determine the net fair market value of the SharesInterest is to be based on the average of the two appraisals. If the higher appraisal does exceed the lower appraisal by more than ten percent, then such appraisers (iithe "First Appraisers") are to arrive at a single calculation appoint another appraiser of such the same qualifications (the "Second Appraiser"); provided, however, that if the First Appraisers fail to agree on the appointment of the Second Appraiser within 60 days following their appointment, the Second Appraiser is to be appointed by the presiding judge of the St. Louis County Circuit Court. The net fair market value rather than alternative calculations or a range of calculations, and (iii) not the Interest is to attribute a premium or discount then be based on the fact that the Shares being valued constitutes a majority or less than a majority average of the total issued and outstanding Shares of Licensee. Any Appraisal by an Appraiser that fails to follow the instructions set forth in this Exhibit C shall not constitute an Appraisal for purposes of this Agreement; except that the failure of an Appraiser to complete an Appraisal within thirty (30) days as instructed shall not affect the validity of such Appraiser’s Appraisal. The cost of Appraisal or Appraisals under the first redemption of stock appraisal made by the University shall be paid as follows: Licensee shall pay for the cost Second Appraiser and that appraisal made by one of the first First Appraisers which is closer in value to the appraisal of the Second Appraiser. If a second Appraiser is requiredthe seller or the purchaser fails to appoint an appraiser within the time period provided above, University shall pay or if an appraiser appointed by any party fails to deliver its appraisal to the cost other party within the time period provided above, the net fair market value of the second Appraiser. If a third Appraiser Interest being acquired is required, Licensee and University shall share equally to be determined solely by the cost appraisal(s) of the third appraiser(s) that was timely appointed and who timely submitted an appraisal. The Second Appraiser, as a condition to its appointment, must agree to complete its appraisal within 30 days following its appointment. With respect The costs of all such appraisals are to any subsequent redemption of stock in which any Appraiser be borne 50% by the seller and 50% by the purchaser. The purchase price is engaged, University shall bear the complete cost of such Appraiser or Appraisers. In lieu of determining the Redemption Price for the Shares by Appraisal, Licensee and University may negotiate and stipulate a Redemption Price on terms mutually acceptable deemed to such parties. * Confidential Treatment Requested i THIS LICENSE AGREEMENT is made and entered into have been determined as of this 17th day the date the seller and the purchaser agree on the purchase price or as of April 1996the date the requisite appraisal(s) is timely delivered, by and between EMORY UNIVERSITY, a Georgia nonprofit corporation with offices at 0000 Xxxxx Xxxxxx Xxxx, X.X., Xxxxxxx, Xxxxxxx 00000, (hereinafter referred to as “EMORY”), and TRIANGLE PHARMACEUTICALS, INCapplicable., a for profit Delaware corporation with principal offices located at 0 Xxxxxxxxxx Xxxxx, 0000 Xxxxxxxxxx Xxxxx, Xxxxxx, XX 00000 (hereinafter referred to as “COMPANY”).

Valuation Procedure. Whenever At the value time of the Shares must event giving rise to the need to determine the Fair Market Value of the Company (i.e., upon notice of --- exercise of the Call Option or the Change of Control Put), the following procedure shall be determined pursuant used to Section 4.2 hereof, within determine the Fair Market Value of the Company: (a) Within ten (10) days after of receipt of notice is given by Universityof the event giving rise to the need to determine Fair Market Value, University and Licensee C&D shall attempt to agree upon the selection of select a disinterested independent qualified nationally recognized investment banking firm or other disinterested independent qualified appraiser (the “Appraiser”) to determine firm, which shall establish the fair market value of all of the Interests of the Company by using valuation methods customary in the investment banking industry (including those set forth below) to determine the value of an enterprise in a sale to a third party in a process designed to maximize the value of the Member's Interests. C&D shall deliver the results of such Shares. If valuation to the parties are able to agree upon an Appraiser, then such Appraiser will be instructed to furnish a written valuation or appraisal Xxxxx Member within twenty (an “Appraisal”) within thirty (3020) days after its selectionof such notice. If the parties are unable to agree upon the selection of an Appraiser within a Within ten (10) day period, then University and Licensee will, within five (5) days after of the end Xxxxx Member's receipt of the results of such ten (10) day periodvaluation, each if the Xxxxx Member does not agree with the valuation provided by the bank selected by C&D, the Xxxxx Member shall select an Appraiser a nationally recognized investment banking firm to determine establish the fair market value of all of the Interests of the Company. The Xxxxx Member shall deliver the results of such Sharesvaluation within twenty (20) days of the receipt of the results of the valuation by C&D's investment banking firm. If either University or Licensee fails to so select an AppraiserIf, after consideration of the valuation provided by the second bank, the Appraisal of the Appraiser selected by the other shall determine the fair market value of such Shares. If the higher of the two Appraisals is not more than one hundred ten percent (110%) of the lower AppraisalXxxxx Member and C&D are still unable to agree upon an appropriate valuation, then the fair market value Xxxxx Member and C&D shall promptly choose a third independent nationally recognized investment banking firm to perform a similar valuation. The "Fair Market Value" of such Shares will the equity of the Company shall be the arithmetic average of the two Appraisals. If the higher of the two Appraisals is equal to or greater than one hundred ten percent (110%) of the lower Appraisal, then the two Appraisers shall, within ten (10) days after the issuance of their respective reports, select a third Appraiser to determine the fair market value of such Shares. The third Appraiser will be instructed to issue a written Appraisal within thirty (30) days after this selection. The third Appraisal shall be arithmetically averaged with the two Appraisals, and the Appraisal furthest from the average of all three Appraisals will be disregarded. The arithmetic average of the two remaining Appraisals will be the fair market value of such Shares. Each Appraiser engaged to provide an Appraisal pursuant hereto will be instructed (i) to include therein a statement of the criteria applied and assumptions made to determine the fair market value of the Shares, (ii) to arrive at a single calculation of such fair market value rather than alternative calculations or a range of calculations, and (iii) not to attribute a premium or discount based on the fact that the Shares being valued constitutes a majority or less than a majority of the total issued and outstanding Shares of Licensee. Any Appraisal by an Appraiser that fails to follow the instructions set forth in this Exhibit C shall not constitute an Appraisal for purposes of this Agreement; except that the failure of an Appraiser to complete an Appraisal within thirty (30) days as instructed shall not affect the validity of such Appraiser’s Appraisal. The cost of Appraisal or Appraisals under the first redemption of stock closest valuations by the University investment banks. Costs and expenses incurred by each Member in connection with its selected investment banking firm providing a valuation shall be paid as follows: Licensee shall pay for the cost of the first Appraiser. If a second Appraiser is required, University shall pay the cost of the second Appraiserby such Member. If a third Appraiser investment banking firm is requiredchosen, Licensee costs and University expenses incurred in connection with such firm providing a valuation shall share be shared and paid equally by the cost Members. (b) Any investment bank retained pursuant to this section to determine the enterprise value for the Company shall utilize the most appropriate and relevant methods of financial analysis as it, in its discretion, shall determine. Without limiting the foregoing, any such investment bank shall consider each of the third Appraiserfollowing valuation methodologies: (i) comparable public companies analysis (including public trading market multiples for companies in similar lines of business and size (assuming continuation of the Company in corporate form)); (ii) selected comparable precedent M&A transactions analysis (including in such precedent transactions the Acquisition, after giving effect to changes in the operations and business of the Company, the industry in which it operates and general market conditions since the Closing Date); (iii) discounted cash flow analysis; and (iv) any other methodologies deemed appropriate or relevant by such investment bank (e.g., initial public offering --- analysis, liquidation analysis, leveraged buyout analysis, sum-of-the-parts analysis (using varying multiples and tax effects, if applicable)). With Any such valuation shall consider market conditions and shall be based on the assumption that the Company is an independent enterprise with its own executive management team and cost structure. Such valuation shall also be based on the assumption that the stock of the Company is widely distributed with no significant concentration held by any stockholder and could be freely sold without any negative implication arising with respect to its management by C&D, as well as such other assumptions as any subsequent redemption such investment bank deems appropriate or relevant. (c) The Xxxxx Member agrees that in the event of stock a sale of the Company in which any Appraiser is engagedits entirety to a third party, University shall bear if appropriate in its sole discretion, it will take into consideration in connection with such sale the complete cost of such Appraiser or Appraisers. In lieu of determining fact that Xxxxx'x Interests in the Redemption Price for Company have been held through the Shares by Appraisal, Licensee and University may negotiate and stipulate a Redemption Price on terms mutually acceptable to such parties. * Confidential Treatment Requested i THIS LICENSE AGREEMENT is made and entered into as of this 17th day of April 1996, by and between EMORY UNIVERSITY, a Georgia nonprofit corporation with offices at 0000 Xxxxx Xxxxxx Xxxx, X.X., Xxxxxxx, Xxxxxxx 00000, (hereinafter referred to as “EMORY”), and TRIANGLE PHARMACEUTICALS, INCBlockers., a for profit Delaware corporation with principal offices located at 0 Xxxxxxxxxx Xxxxx, 0000 Xxxxxxxxxx Xxxxx, Xxxxxx, XX 00000 (hereinafter referred to as “COMPANY”).

Valuation Procedure. Whenever In the value of event the Shares must Fair Market Value is to be determined pursuant to this Agreement: A. As soon as is practicable after the receipt of any notice of an intent to convert debt to equity pursuant to Section 4.2 hereof, within ten (10) days after 4.7 hereof or notice is given by University, University and Licensee shall attempt initiating the Appraisal Process pursuant to agree upon the selection of a disinterested independent qualified investment banking firm Section 6.6 hereof or other disinterested independent qualified appraiser (the “Appraiser”) to otherwise determine the fair market value of such Shares. If the parties are able to agree upon an Appraiser, then such Appraiser will be instructed to furnish a written valuation or appraisal (an “Appraisal”) within thirty (30) days after its selection. If the parties are unable to agree upon the selection of an Appraiser within a ten (10) day period, then University and Licensee will, within five (5) days after the end of such ten (10) day period, each select an Appraiser to determine the fair market value of such Shares. If either University or Licensee fails to so select an Appraiserassets under this Agreement, the Appraisal of the Appraiser selected by the other shall determine the fair market value of such Shares. If the higher of the two Appraisals is not more than one hundred ten percent (110%) of the lower Appraisal, then the fair market value of such Shares will be the arithmetic average of the two Appraisals. If the higher of the two Appraisals is equal to or greater than one hundred ten percent (110%) of the lower Appraisal, then the two Appraisers shall, within ten (10) days after the issuance of their respective reports, select a third Appraiser to determine the fair market value of such Shares. The third Appraiser will be instructed to issue a written Appraisal within thirty (30) days after this selection. The third Appraisal shall be arithmetically averaged with the two Appraisals, Hughes Member and the Appraisal furthest from the average of all three Appraisals will be disregarded. The arithmetic average of the two remaining Appraisals will be the fair market value of such Shares. Each Appraiser engaged to provide an Appraisal pursuant hereto will be instructed (i) to include therein a statement of the criteria applied Darlene Member shall confer in good faith and assumptions made xxx xxeir commercially xxxxxxable efforts to determine the fair market value of the Sharesequity of the Company based on a fully-distributed public market valuation (which valuation shall not give effect to any illiquidity, minority interest, or related discount), on the applicable date (iithe "Fair Market Value"); provided, however, that if the Hughes Member and the Darlene Member are unable to agree on the Fair Xxxxxt Value within txxxxx (30) days after delivery of any such notice, or earlier, if they shall so agree, then the Hughes Member and the Darlene Member shall consult for the purpose ox xxxxinting a mutuallx xxxxxtable qualified independent expert (the "Expert") who shall determine the Fair Market Value as soon after such Expert's appointment as is reasonably practicable. B. If the Hughes Member and the Darlene Member shall be unable to arrive at agree on a single calculation sxxxxx Expert within fixxxxx (15) Business Days, the Fair Market Value shall be determined as follows: (i) each of the Hughes Member and the Darlene Member shall select one Expert (togethxx, xxe "Initial Experxx") xxt later than three (3) Business Days after the expiration of such fair market value rather fifteen (15) Business Day period (or agreed upon shorter period). The Initial Experts shall each provide their written conclusions as to the Fair Market Value not later than alternative calculations or a range of calculations, and (iii) not to attribute a premium or discount based on the fact that the Shares being valued constitutes a majority or less than a majority of the total issued and outstanding Shares of Licensee. Any Appraisal by an Appraiser that fails to follow the instructions set forth in this Exhibit C shall not constitute an Appraisal for purposes of this Agreement; except that the failure of an Appraiser to complete an Appraisal within thirty (30) days after their engagement as instructed Experts. If the Fair Market Values calculated by the Initial Experts differ by less than 15% of the larger calculated Fair Market Value, the Fair Market Value shall equal the average of the two. If such calculated Fair Market Values differ by more than 15% of the larger calculated Fair Market Value, a third expert (the "Third Expert") shall be selected promptly by the Initial Experts and such Third Expert shall provide a calculated Fair Market Value within twenty (20) days after the delivery of the Fair Market Value calculations delivered by the Initial Experts. The Fair Market Value shall be the average of the value calculated by such third Expert and the closest of the values previously provided by the Initial Experts; the valuation of the other Expert shall be excluded from the calculation of Fair Market Value. The Third Expert's valuation shall be made independently of the valuations of the Initial Experts and the Third Expert shall not affect consult with, or view any findings of, either Initial Expert in connection with the validity of such Appraiser’s Appraisal. The cost of Appraisal or Appraisals under Third Expert's valuation. (ii) in the first redemption of stock by event that the University Initial Experts shall be paid as follows: Licensee unable to agree upon a Third Expert within twenty (20) days after delivery of their calculations of Fair Market Value, both the Hughes Member and the Darlene Member shall pay for notify the cost International Xxxxxxr of Commerce of xxxx xisagreement and the first Appraiser. If a second Appraiser is required, University International Chamber of Commerce (or its successor) shall pay appoint the cost Third Expert within ten (10) days of the second Appraiser. If a third Appraiser is required, Licensee and University shall share equally the cost of the third Appraiser. With respect to any subsequent redemption of stock in which any Appraiser is engaged, University shall bear the complete cost of such Appraiser or Appraisers. In lieu of determining the Redemption Price for the Shares by Appraisal, Licensee and University may negotiate and stipulate a Redemption Price on terms mutually acceptable to such parties. * Confidential Treatment Requested i THIS LICENSE AGREEMENT is made and entered into as of this 17th day of April 1996, by and between EMORY UNIVERSITY, a Georgia nonprofit corporation with offices at 0000 Xxxxx Xxxxxx Xxxx, X.X., Xxxxxxx, Xxxxxxx 00000, (hereinafter referred to as “EMORY”), and TRIANGLE PHARMACEUTICALS, INCits engagement., a for profit Delaware corporation with principal offices located at 0 Xxxxxxxxxx Xxxxx, 0000 Xxxxxxxxxx Xxxxx, Xxxxxx, XX 00000 (hereinafter referred to as “COMPANY”).