Determination of Fair Market Value. For purposes of this Section 10.2, “fair market value” of a Share (or Common Stock if the Shares have been converted into Common Stock) as of a particular date (the “Determination Date”) shall mean:
(i) If the Conversion Right is exercised in connection with and contingent upon a Public Offering, and if the Company’s Registration Statement relating to such Public Offering (“Registration Statement”) has been declared effective by the Securities and Exchange Commission, then the initial “Price to Public” specified in the final prospectus with respect to such offering.
(ii) If the Conversion Right is not exercised in connection with and contingent upon a Public Offering, then as follows:
(A) If traded on a securities exchange, the fair market value of the Common Stock shall be deemed to be the average of the closing prices of the Common Stock on such exchange over the five trading days immediately prior to the Determination Date, and the fair market value of the Shares shall be deemed to be such fair market value of the Common Stock multiplied by the number of shares of Common Stock into which each share of Series Preferred is then convertible;
(B) If traded on the Nasdaq Stock Market or other over-the-counter system, the fair market value of the Common Stock shall be deemed to be the average of the closing prices of the Common Stock over the five trading days immediately prior to the Determination Date, and the fair market value of the Shares shall be deemed to be such fair market value of the Common Stock multiplied by the number of shares of Common Stock into which each Share is then convertible; and
(C) If there is no public market for the Common Stock, then fair market value shall be determined by the Board of Directors of the Company in good faith. In making a determination under clauses (A) or (B) above, if on the Determination Date, five trading days had not passed since the closing of the Company’s initial public offering of its Common Stock (“IPO”), then the fair market value of the Common Stock shall be the average closing prices or closing bid prices, as applicable, for the shorter period beginning on and including the date of the IPO and ending on the trading day prior to the Determination Date (or if such period includes only one trading day, the closing price or closing bid price, as applicable, for such trading day). If closing prices or closing bid prices are no longer reported by a securities exchange or other trading system, the closing pri...
Determination of Fair Market Value. (a) If the Unilever Stockholder exercises its Put Option pursuant to Section 8.1 or the Company exercises its Call Option pursuant to Section 8.5 or in the case of an Approved Sale in accordance with Section 7.2, the Unilever Stockholder shall have twenty Business Days from the date of the Put Notice, in the case of an exercise of a Put Option, and thirty Business Days from the date of the Call Notice or Approved Sale Notice Date (as the case may be), in which to propose (i) a Base Value (such proposal, the “Initial Valuation Proposal”), which shall be accompanied by a report and analysis of the Unilever Stockholder’s financial advisor (the “Unilever Valuation Report”) supporting the Initial Valuation Proposal, prepared in accordance with the Valuation Principles, and (ii) the Applicable EBITDA (such proposal, the “Initial EBITDA Proposal” and, together with the Initial Valuation Proposal, the “Initial Unilever Proposals”). The Company shall, during such periods, provide access to the Unilever Stockholder, at the Unilever Stockholder’s cost, to the information described in Section 8.12 as is reasonably requested by the Unilever Stockholder in connection with the preparation of the Initial Unilever Proposals and the Unilever Valuation Report (which documentation shall be considered nonpublic information for purposes of Section 6.4). The Initial Unilever Proposals shall be in writing, shall be submitted to the Company within the periods referred to in the first sentence of this Section 8.9 and shall specify the facts and circumstances supporting the reasonableness and propriety of the Initial Valuation Proposal and the Initial EBITDA Proposal under the Valuation Principles and Exhibit 4, respectively.
(b) Unless the Unilever Stockholder provides the Initial Unilever Proposals and the Unilever Valuation Report to the Company within the periods referred to in subsection (a) of this Section 8.9, the Base Value for the applicable Measurement Period shall be deemed to be equal to eight times the Applicable EBITDA, the Unilever Stockholder shall have irrevocably waived its rights pursuant to Section 8.11 (including its right to propose any other Base Value for such Measurement Period or to obtain any determination thereunder), and such Base Value shall be final and binding upon the Unilever Stockholder, each other Unilever Group Member and the Company for all purposes of this Agreement.
(c) The Company and the Unilever Stockholder shall use their respective best e...
Determination of Fair Market Value. For purposes of this Section 10.2, “fair market value” of a share of Common Stock as of a particular date (the “Determination Date”) shall mean:
(i) If the Conversion Right is exercised in connection with and contingent upon a Public Offering, and if the Company’s Registration Statement relating to such Public Offering (“Registration Statement”) has been declared effective by the Securities and Exchange Commission, then the initial “Price to Public” specified in the final prospectus with respect to such offering.
(ii) If the Conversion Right is not exercised in connection with and contingent upon a Public Offering, then as follows:
(A) If traded on a securities exchange, the fair market value of the Common Stock shall be deemed to be the average of the closing prices of the Common Stock on such exchange over the five trading days immediately prior to the Determination Date;
(B) If traded on the NASDAQ Stock Market or other over-the-counter system, the fair market value of the Common Stock shall be deemed to be the average of the closing prices of the Common Stock over the five trading days immediately prior to the Determination Date; and
(C) If there is no public market for the Common Stock, then fair market value shall be determined by mutual agreement of the holder of this Warrant and the Company. If closing prices or closing bid prices are no longer reported by a securities exchange or other trading system, the closing price or closing bid price shall be that which is reported by such securities exchange or other trading system at 4:00 p.m. New York City time on the applicable trading day.
Determination of Fair Market Value. “Fair Market Value” means, in Lessor’s reasonable determination, the greater of: (i) the amount that would be paid in an arm’s length, free market transaction, for cash, between an informed, willing seller and an informed willing buyer, neither of whom is under compulsion to complete the transaction, taking into account, among other things, the age, condition and performance of the System and advances in solar technology, provided that installed equipment shall be valued on an installed basis, shall not be valued as scrap if it is functioning and in good condition and costs of removal from a current location shall not be a deduction from the valuation, and (ii) [for any given Contract Year, the amount set forth on Exhibit 4, Attachment A attached hereto] [the present value (using a discount rate of [___] percent ([__]%])) of all associated future income streams expected to be received by Lessor arising from the operation of the System for the remaining term of the Agreement including but not limited to the expected price of electricity, Environmental Attributes, and Tax Credits and factoring in future costs and expenses associated with the System avoided]. Lessor shall determine Fair Market Value within thirty (30) days after Lessee has exercised its option to Purchase the System. Lessor shall give written notice to Lessee of such determination, along with a full explanation of the calculation of Fair Market Value, including without limitation, an explanation of all assumptions, figures and values used in such calculation and factual support for such assumptions, figures and values. If Lessee reasonably objects to Lessor’s determination of Fair Market Value within thirty (30) days after Lessor has provided written notice of such determination, the Parties shall select a nationally recognized independent appraiser with experience and expertise in the solar photovoltaic industry to determine the Fair Market Value of the System. Such appraiser shall act reasonably and in good faith to determine the Fair Market Value of the System based on the formulation set forth herein, and shall set forth such determination in a written opinion delivered to the Parties. The valuation made by the appraiser shall be binding upon the Parties in the absence of fraud or manifest error. The costs of the appraisal shall be borne by the Parties equally. Upon purchase of the System, Lessee will assume complete responsibility for the operation and maintenance of the System and liabi...
Determination of Fair Market Value. For purposes of this Section 1.4(c), “fair market value” of a share of Common Stock as of a particular date (the “Determination Date”) shall mean:
(i) If the Conversion Right is exercised in connection with and contingent upon a public offering, and if the Company’s Registration Statement relating to such public offering (“Registration Statement”) has been declared effective by the SEC, then the initial “Price to Public” specified in the final prospectus with respect to such offering.
(ii) If the Conversion Right is not exercised in connection with and contingent upon a public offering, then as follows:
(1) If traded on a securities exchange, the fair market value of the Common Stock shall be deemed to be the average of the closing prices of the Common Stock on such exchange over the five-day period ending one business day prior to the Determination Date or, if less, such number of days as the Common Stock has been traded on such exchange;
(2) If traded over-the-counter, the fair market value of the Common Stock shall be deemed to be the average of the closing bid prices of the Common Stock over the five-day period ending one business day prior to the Determination Date or, if less, such number of days as the Common Stock has been traded over-the-counter; and
(3) If there is no public market for the Common Stock, then fair market value shall be determined in good faith by the Board of Directors of the Company.
Determination of Fair Market Value. Subject to the provisions set forth below, the fair market value of the Company or of any non-cash consideration received by the Company upon any Common Stock Distribution shall be determined in good faith by the Board of Directors of the Company. Upon each determination, the Company shall promptly give notice thereof to the Holder, setting forth in reasonable detail the calculation of the fair market value and the method and basis of determination thereof (the "Company Determination"). If the Holder shall disagree with the Company Determination and shall, by notice to the Company given within thirty (30) days after the Company's notice of the Company Determination, elect to dispute the Company Determination, the Company shall, within thirty (30) days after receipt of the notice, engage an investment bank or other qualified appraisal firm acceptable to the Holder to make an independent determination of the fair market value of the Company or of any non-cash consideration received by the Company upon any Common Stock Distribution (the "Appraiser Determination"). The Appraiser Determination shall be final and binding on the Company and the Holder. The cost of the Appraiser Determination shall be borne by the Company.
Determination of Fair Market Value. For purposes of this Section 9.2, "fair market value" of a share of Common Stock as of a particular date (the "Determination Date") shall mean:
(i) If traded on a securities exchange, the fair market value of the Common Stock shall be deemed to be the average of the closing prices of the Common Stock on such exchange over the five trading days immediately prior to the Determination Date;
(ii) If traded on the Nasdaq Stock Market or other over-the-counter system, the fair market value of the Common Stock shall be deemed to be the average of the closing sale prices, or if there shall be no closing sale price on any day the average of the closing bid and ask prices for such day, of the Common Stock over the five trading days immediately prior to the Determination Date; and
(iii) If there is no public market for the Common Stock, then fair market value shall be determined by mutual agreement of the holder of this Warrant and the Company. If closing prices or closing bid and ask prices are no longer reported by a securities exchange or other trading system, the closing price or closing bid and ask prices shall be that which is reported by such securities exchange or other trading system at 4:00 p.m. New York City time on the applicable trading day.
Determination of Fair Market Value. Upon the commencement of the extension term, the Base Rent shall be an annual amount equal to ninety-five percent (95%) of the fair market rental value of the Premises in its then current condition, use and configuration, and without regard to any other possible condition, use, configuration or land use entitlements or restrictions with respect to the Premises, determined as follows (“Fair Market Rent”):
(a) Landlord shall deliver to Tenant written notice of Landlord’s determination of fair market rental value within thirty (30) days after Landlord receives notice from Tenant that Tenant has exercised the Extension Option.
(b) If Tenant disputes Landlord’s determination of the fair market rental value as contained in Landlord’s notice, Tenant shall notify Landlord in writing within twenty (20) days of its receipt of Landlord’s determination, which notice shall set forth Tenant’s determination of the fair market rental value. Should Tenant timely notify Landlord as aforesaid, Landlord and Tenant shall attempt to resolve their differences within twenty (20) days following Landlord’s receipt of Tenant’s notice. Should Tenant fail to timely notify Landlord as aforesaid, then ninety-five percent (95%) of Landlord’s determination of fair market rental value as contained in Landlord’s notice shall constitute the Fair Market Rent.
(c) Should Tenant timely notify Landlord as aforesaid and if Landlord and Tenant cannot agree on fair market rental value during such ten (10) day period, Landlord and Tenant shall each appoint a disinterested commercial real estate broker specializing in the leasing of similarly situated real property in San Mateo County for at least ten (10) years and give notice of such appointment to the other within ten (10) days after the preceding ten (10) day period. If either Landlord or Tenant shall fail timely to appoint a broker, then the single broker appointed by one party shall proceed to make the determination of fair market rental value. Such broker(s) shall, within thirty (30) days after the appointment of the last of them to be appointed, complete their written determinations of fair market rental value and furnish the same to Landlord and Tenant. Each party shall pay the fees and costs of the broker appointed by it. If the valuations vary by 5% or less of the lower value, the fair market rental value shall be the average of the two valuations.
(d) If the valuations vary by more than 5% of the lower value, the two brokers shall, within...
Determination of Fair Market Value. The Fair Market Value of the Issued Shares shall be, for purposes of this Section 9, determined by the Board as of the date the Board elects to exercise its repurchase rights in connection with a Repurchase Event.
Determination of Fair Market Value. For purposes of this Section 4, "fair market value" of a share of Common Stock as of a particular date (the "Determination Date") shall mean (i) if shares of Common Stock are traded on a national securities exchange (an "Exchange"), the weighted average of the closing prices of a share of the Common Stock of the Company on the last five (5) trading days prior to the Determination Date reported on such Exchange as reported in The Wall Street Journal (weighted with respect to the trading volume with respect to each such day), (ii) if shares of Common Stock are not traded on an Exchange but trade in the over-the-counter market and such shares are quoted on the National Association of Securities Dealers Automated Quotations System ("NASDAQ"), the weighted average of the closing prices of a share of the Common Stock of the Company on the last five (5) trading days prior to the Determination Date reported on NASDAQ as reported in The Wall Street Journal (weighted with respect to the trading volume with respect to each such day), (iii) if such shares are an issue for which last sale prices are not reported on NASDAQ, the average of the closing bid and ask prices, in each case on the last five (5) trading days (or if the relevant price or quotation did not exist on any of such days, the relevant price or quotation on the next preceding business day on which there was such a price or quotation) prior to the Determination Date as reported by the National Quotation Bureau, Incorporated, or any other successor organization, (iv) if no bid and asked prices are reported for the Common Stock by the National Quotation Bureau, Incorporated or any other successor organization for such day, the average of the high and low bid and asked price of any of the market makers for the Common Stock as reported on the OTCBB for the last five (5) trading days, or (v) if no price can be determined on the basis of the above methods of valuation, then the judgment of valuation shall be determined in good faith by the Board of Directors of the Company, which determination shall be described in a duly adopted board resolution certified by the Company's
