Consideration Shares. (a) Following execution of this Agreement, if required by the ASX Listing Rules, the Parent shall lodge an Appendix 3B with the ASX to announce the proposed issue of the Consideration Shares. (b) On or immediately following the Closing Date, the Parent shall do all such acts, matters and things that are necessary to procure the official quotation of the Consideration Shares on the ASX, including: (i) applying for official quotation of the Consideration Shares on the ASX by lodging an Appendix 2A, (ii) lodging with the ASX a cleansing notice in accordance with section 708A(5)(e) of the Corporations Act in respect of the Consideration Shares, (iii) causing its share registry to enter the Consideration Shares in the share register of the Parent; and (iv) requesting its share registry to issue to each Vendor a holding statement in respect of the relevant Consideration Shares. (c) If the number of Consideration Shares to be issued to a Vendor is not a whole number, then: (i) any fractional entitlement to Consideration Shares which is 0.5 or greater will be rounded up to the nearest whole number of Consideration Shares and (ii) any fractional entitlement to Consideration Shares which is less than 0.5 will be rounded down to the nearest whole number of Consideration Shares. Any difference in the Purchase Price resulting from such rounding will be reflected in accordance with the post-Closing adjustments pursuant to Section 2.7. (d) That portion of the Purchase Price payable in Consideration Shares which are issued to Insiders will be escrowed (i.e., prohibited from trading), held on the Issuer Sponsored Subregister and subject to a Holding Lock for a period of twelve (12) months after Closing (“Insider Share Escrow”) pursuant to the terms of this Agreement and an escrow restriction deed entered into between each Insider and the Parent (the “Insider Share Escrow Agreements”), substantially in the form attached as Schedule 2.5.3(D), hereto. (e) That portion of the Purchase Price payable in Consideration Shares which are issued to Investors will be escrowed (i.e., prohibited from trading), held on the Issuer Sponsored Subregister and subject to a Holding Lock for a period of three (3) months from Closing (“Investor Share Escrow”) pursuant to the terms of this Agreement and an escrow restriction deed entered into between each Investor and the Parent (the “Investor Share Escrow Agreements”), substantially in the form attached as Schedule 2.5.3(E), hereto. (f) During the period of the Insider Share Escrow or Investor Share Escrow, as applicable, and subject to the terms of the Insider Share Escrow Agreements or Investor Share Escrow Agreements, as applicable, the applicable Vendor shall not do any of the following: (i) dispose of, or agree or offer to dispose of, any of the Consideration Shares; (ii) create or agree or offer to create, any Encumbrance over the Consideration Shares; or (iii) do, or omit to do, any act if the act or omission would have the effect of transferring effective ownership or control of the Consideration Shares. (g) The obligations set out in Sections 2.5.3(d), 2.5.3(e) and 2.5.3(f) do not apply if the disposal arises as a result of or pursuant to: (i) the acceptance of a bona fide takeover bid made under chapter 6 of the Corporations Act in respect of the Consideration Shares; (ii) the transfer or cancellation of the Consideration Shares held in escrow pursuant to the Insider Share Escrow and Investor Share Escrow as part of a scheme of arrangement under Part 5.1 of the Corporations Act; (iii) participation in an equal access share buy-back, equal capital return or equal capital reduction, in each case, made in accordance with the Corporations Act; or (iv) if the disposal is required by applicable Law. all of which shall be as set forth in the Insider Share Escrow Agreements or Investor Share Escrow Agreements, as applicable. (h) The Parent shall, not less than five (5) Business Days (as defined in the ASX Listing Rules) before the end of the period of the Insider Share Escrow or Investor Share Escrow, as applicable, notify the ASX of the release from escrow of the applicable Consideration Shares in accordance with the ASX Listing Rule 3.10A. (i) Each Vendor shall execute all agreements as may be reasonably requested by the ASX or the Purchaser solely to give effect to this Section 2.5.3. (j) Execution of this Agreement by each of the Vendors constitutes: (i) an application by such Vendor to subscribe for the Consideration Shares, and confirmation that it will not be necessary for the Vendor to provide a separate application form to the Parent for the Consideration Shares; and (ii) such Vendor’s agreement to become a member of the Parent for the purposes of section 231(b) of the Corporations Act and to be bound by the constitution of the Parent upon the issue of the Consideration Shares. (k) Upon the expiry of the respective Insider Share Escrow and Investor Share Escrow, the Parent shall direct its share registry to release the Holding Lock on the Consideration Shares and the Parent agrees to take any and all such other steps or actions as may be required to ensure such Consideration Shares are released from the Holding Lock so they may be freely tradeable by the respective Vendor or its appointed broker. (l) For the avoidance of doubt, nothing in this Agreement is intended to prevent the disposal of the Consideration Shares by the applicable Vendor following the release of such Vendor’s Consideration Shares from escrow upon expiry of the Insider Share Escrow or Investor Share Escrow, as applicable.
Appears in 4 contracts
Sources: Share Purchase Agreement (Telix Pharmaceuticals LTD), Share Purchase Agreement (Telix Pharmaceuticals LTD), Share Purchase Agreement (Telix Pharmaceuticals LTD)
Consideration Shares. 4.1 The Consideration Shares shall be credited as fully paid, issued to the Seller free from all Encumbrances and rank pari passu in all respects with the existing Class A ordinary shares of US$0.10 each in the capital of the Buyer, including the right to receive all dividends declared, made or paid after the Completion Date (a) Following execution save that they shall not rank for any dividend or other distribution of the Buyer declared made, or paid by reference to a record date before the Completion Date).
4.2 For the purposes of this Agreement, if required by the ASX Listing Rules, the Parent shall lodge an Appendix 3B with the ASX to announce the proposed issue of the Consideration Shares.
(b) On or immediately following the Closing Date, the Parent shall do all such acts, matters and things that are necessary to procure the official quotation of the Consideration Shares on the ASX, including: (i) applying for official quotation of the Consideration Shares on the ASX by lodging an Appendix 2A, (ii) lodging with the ASX a cleansing notice in accordance with section 708A(5)(e) of the Corporations Act in respect aggregate number of the Consideration Shares, (iii) causing its share registry to enter as well as the number comprising each of the Completion Consideration Shares, the Application Integration Shares and the Integration Consideration Shares in shall be calculated by the share register Buyer at Completion, based on the calculation of [***], provided that, with respect to the Parent; and (iv) requesting its share registry to issue to each Vendor a holding statement in respect of the relevant Integration Consideration Shares.
(c) If , such number shall be adjusted after Completion for any stock split, combination, recapitalization or similar event that occurs after Completion but before the Integration Consideration Shares are allotted and issued to the Seller. Following such calculation, and in any event not later than [***], the Buyer shall notify the Seller in writing of the number of Consideration Shares, as well as the number comprising each of the Completion Consideration Shares, the Application Integration Shares and the Integration Consideration
4.3 The Buyer shall not be under any obligation to issue a fraction of a Consideration Share and accordingly the number of the Consideration Shares to be issued to a Vendor is not a whole number, then: (i) any fractional entitlement to Consideration Shares which is 0.5 or greater will be rounded up to the nearest whole number of Consideration Shares and (ii) any fractional entitlement to Consideration Shares which is less than 0.5 will Seller shall be rounded down to the nearest whole number in order to give effect to this Clause 4.3.
4.4 The Seller undertakes to the Buyer that notwithstanding any release of the Seller from its lock-up obligations in respect of the Consideration Shares. Any difference Shares set out in the Purchase Price resulting from such rounding will be reflected SHA Supplemental Deed:
4.4.1 it shall not, until [***] (the “Initial Lock-in Period”), Transfer [***] of the Consideration Shares (or any interest in them) to, or enter into any agreement to do so with, any Third Party;
4.4.2 following the Initial Lock-in Period, it shall not, until [***] (the “Second Lock-in Period”), Transfer [***]of the Consideration Shares (or any interest in them) to, or enter into any agreement to do so with, any Third Party; and
4.4.3 following the Second Lock-in Period, it shall not, until [***] (the “Third Lock-in Period” and, together with the Initial Lock-in Period and the Second Lock-in Period, the “Lock-in Periods”), Transfer [***] of the Consideration Shares (or any interest in them) to, or enter into any agreement to do so with, any Third Party, in each case, except in accordance with the post-Closing adjustments pursuant to Section 2.7Clause 4.5.
(d) That 4.5 Nothing in Clause 4.4 shall prevent the Seller from Transferring all or a portion of the Purchase Price payable in Consideration Shares (or any interest in them) which are issued to Insiders will be escrowed (i.e., prohibited from trading), held on the Issuer Sponsored Subregister and subject to a Holding Lock for a period of twelve (12) months after Closing (“Insider Share Escrow”) pursuant to the terms of this Agreement and an escrow restriction deed entered into between each Insider and the Parent (the “Insider Share Escrow Agreements”), substantially in the form attached as Schedule 2.5.3(D), hereto.
(e) That portion of the Purchase Price payable in Consideration Shares which are issued to Investors will be escrowed (i.e., prohibited from trading), held on the Issuer Sponsored Subregister and subject to a Holding Lock for a period of three (3) months from Closing (“Investor Share Escrow”) pursuant to the terms of this Agreement and an escrow restriction deed entered into between each Investor and the Parent (the “Investor Share Escrow Agreements”), substantially in the form attached as Schedule 2.5.3(E), hereto.
(f) During the period of the Insider Share Escrow or Investor Share Escrow, as applicable, and subject to the terms undertaking not to Transfer pursuant to Clause 4.4 during the relevant Lock-in Period:
4.5.1 in acceptance of a general offer made by any Third Party for all of the Insider Share Escrow Agreements voting shares comprising the share capital of the Buyer (other than any ordinary share capital owned by the offeror or Investor Share Escrow Agreements, any concert party of the offeror) which is recommended by a majority of the Supervisory Board of the Buyer;
4.5.2 pursuant to an irrevocable commitment to accept any offer made for all of the voting shares comprising the share capital of the Buyer (other than any share capital owned by the offeror or any concert party of the offeror) which is recommended by a majority of the Supervisory Board of the Buyer;
4.5.3 where such disposal is made pursuant to an offer by the Buyer to purchase its own shares which is made on identical terms to all holders of voting shares in the Buyer and otherwise complies with Applicable Law;
4.5.4 pursuant to any scheme of reconstruction in relation to the Buyer in connection with its insolvency;
4.5.5 pursuant to any compromise or arrangement which is agreed by the requisite majority of the members of the Buyer and sanctioned by the court;
4.5.6 in the event of an intervening final and non-appealable court order or otherwise as applicablerequired by Applicable Law;
4.5.7 to satisfy a Claim under this Agreement in accordance with Clause 7.4;
4.5.8 in connection with [***]; or
4.5.9 with the prior written consent of the Buyer.
4.6 For the purposes of Clause 4.4, the applicable Vendor Consideration Shares shall not do include:
4.6.1 any shares held by the Seller arising out of the following:
(i) dispose ofconsolidation, conversion or agree or offer to dispose of, subdivision of any of the Consideration Shares;; and
(ii) create or agree or offer 4.6.2 any shares acquired by reference to create, any Encumbrance over the Consideration Shares; or
(iii) do, whether by way of a bonus or rights issue, pre-emption right or otherwise, or omit to do, in exchange or substitution for any act if the act or omission would have the effect of transferring effective ownership or control of the Consideration Shares.
(g) The obligations set out in Sections 2.5.3(d), 2.5.3(e) and 2.5.3(f) do not apply if the disposal arises as a result of or pursuant to4.7 [***].
4.8 [***]:
(i) the acceptance of a bona fide takeover bid made under chapter 6 of the Corporations Act in respect of the Consideration Shares;
(ii) the transfer or cancellation of the Consideration Shares held in escrow pursuant to the Insider Share Escrow and Investor Share Escrow as part of a scheme of arrangement under Part 5.1 of the Corporations Act;
(iii) participation in an equal access share buy-back, equal capital return or equal capital reduction, in each case, made in accordance with the Corporations Act; or
(iv) if the disposal is required by applicable Law. all of which shall be as set forth in the Insider Share Escrow Agreements or Investor Share Escrow Agreements, as applicable4.9 [***].
(h) The Parent shall, not less than five (5) Business Days (as defined in the ASX Listing Rules) before the end of the period of the Insider Share Escrow or Investor Share Escrow, as applicable, notify the ASX of the release from escrow of the applicable Consideration Shares in accordance with the ASX Listing Rule 3.10A.
(i) Each Vendor shall execute all agreements as may be reasonably requested by the ASX or the Purchaser solely to give effect to this Section 2.5.3.
(j) Execution of this Agreement by each of the Vendors constitutes:
(i) an application by such Vendor to subscribe for the Consideration Shares, and confirmation that it will not be necessary for the Vendor to provide a separate application form to the Parent for the Consideration Shares; and
(ii) such Vendor’s agreement to become a member of the Parent for the purposes of section 231(b) of the Corporations Act and to be bound by the constitution of the Parent upon the issue of the Consideration Shares.
(k) Upon the expiry of the respective Insider Share Escrow and Investor Share Escrow, the Parent shall direct its share registry to release the Holding Lock on the Consideration Shares and the Parent agrees to take any and all such other steps or actions as may be required to ensure such Consideration Shares are released from the Holding Lock so they may be freely tradeable by the respective Vendor or its appointed broker.
(l) For the avoidance of doubt, nothing in this Agreement is intended to prevent the disposal of the Consideration Shares by the applicable Vendor following the release of such Vendor’s Consideration Shares from escrow upon expiry of the Insider Share Escrow or Investor Share Escrow, as applicable.
Appears in 2 contracts
Sources: Agreement for the Sale and Purchase of Shares (Yandex N.V.), Agreement for the Sale and Purchase of the Issued Share Capital (Yandex N.V.)
Consideration Shares. 5.1 Subject to the provisions of Clause 5.2, without the prior written consent of the Buyer (in its absolute discretion), none of the Sellers shall:
(a) Following execution during the six month period from the date of this AgreementCompletion, if required by the ASX Listing Rulesdispose of, the Parent shall lodge an Appendix 3B with the ASX to announce the proposed issue charge or otherwise encumber 50 per cent. of the Consideration Shares.Shares legally or beneficially owned by that Seller from time to time or other securities for the time being representing or derived from those shares (whether by way of consolidation, sub-division, capitalisation or rights issue or otherwise);
(b) On or immediately following during the Closing Datesix month period from the date of Completion, the Parent shall do all such acts, matters and things that are necessary to procure the official quotation make any disposal of 50 per cent. of the Consideration Shares on legally or beneficially owned by that Seller from time to time or other securities for the ASXtime being representing or derived from those shares (whether by way of consolidation, including: sub-division, capitalisation or rights issue or otherwise) except through the Buyer’s broker (i“Broker”) applying in order to ensure an orderly market in the share capital of the Company, provided that if the Broker is unable to arrange for official quotation the disposal of such Consideration Shares concerned at a price which is acceptable to the Seller within 10 Business Days (or, where the disposal is of 3% or less of the Consideration Shares on legally or beneficially owned by the ASX by lodging an Appendix 2Arelevant Seller at that time, (ii) lodging with the ASX a cleansing notice in accordance with section 708A(5)(e5 Business Days) of being formally instructed in connection with such disposal, the Corporations Act in respect disposal of the Consideration Shares, (iii) causing its share registry to enter the such Consideration Shares in the share register of the Parent; and (iv) requesting its share registry to issue to each Vendor concerned may be effected through a holding statement in respect of the relevant Consideration Shares.
(c) If the number of Consideration Shares to be issued to a Vendor third party broker but only if it is not a whole number, then: (i) any fractional entitlement to Consideration Shares which is 0.5 or greater will be rounded up to the nearest whole number of Consideration Shares and (ii) any fractional entitlement to Consideration Shares which is less than 0.5 will be rounded down to the nearest whole number of Consideration Shares. Any difference in the Purchase Price resulting from such rounding will be reflected in accordance with the post-Closing adjustments pursuant to Section 2.7.
(d) That portion of the Purchase Price payable in Consideration Shares which are issued to Insiders will be escrowed (i.e., prohibited from trading), held on the Issuer Sponsored Subregister and subject to a Holding Lock for a period of twelve (12) months after Closing (“Insider Share Escrow”) pursuant to the terms of this Agreement and an escrow restriction deed entered into between each Insider and the Parent (the “Insider Share Escrow Agreements”), substantially in the form attached as Schedule 2.5.3(D), hereto.
(e) That portion of the Purchase Price payable in Consideration Shares which are issued to Investors will be escrowed (i.e., prohibited from trading), held on the Issuer Sponsored Subregister and subject to a Holding Lock for a period of three (3) months from Closing (“Investor Share Escrow”) pursuant to the terms of this Agreement and an escrow restriction deed entered into between each Investor and the Parent (the “Investor Share Escrow Agreements”), substantially in the form attached as Schedule 2.5.3(E), hereto.
(f) During the period of the Insider Share Escrow or Investor Share Escrow, as applicable, and subject to the terms of the Insider Share Escrow Agreements or Investor Share Escrow Agreements, as applicable, the applicable Vendor shall not do any of the following:effected:-
(i) dispose of, or agree or offer to dispose of, any at a price in excess of the Consideration Shares;
(ii) create or agree or offer to create, any Encumbrance over the Consideration Shares; or
(iii) do, or omit to do, any act if the act or omission would have the effect of transferring effective ownership or control of the Consideration Shares.
(g) The obligations set out in Sections 2.5.3(d), 2.5.3(e) and 2.5.3(f) do not apply if the disposal arises as a result of or pursuant to:
(i) the acceptance of a bona fide takeover bid made under chapter 6 of the Corporations Act in respect of the Consideration Shares;
(ii) the transfer or cancellation of the Consideration Shares held in escrow pursuant to the Insider Share Escrow and Investor Share Escrow as part of a scheme of arrangement under Part 5.1 of the Corporations Act;
(iii) participation in an equal access share buy-back, equal capital return or equal capital reduction, in each case, made in accordance with the Corporations Act; or
(iv) if the disposal is required by applicable Law. all of which shall be as set forth in the Insider Share Escrow Agreements or Investor Share Escrow Agreements, as applicable.
(h) The Parent shall, not less than five (5) Business Days (as defined in the ASX Listing Rules) before the end of the period of the Insider Share Escrow or Investor Share Escrow, as applicable, notify the ASX of the release from escrow of the applicable Consideration Shares in accordance with the ASX Listing Rule 3.10A.
(i) Each Vendor shall execute all agreements as may be reasonably requested by the ASX or the Purchaser solely to give effect to this Section 2.5.3.
(j) Execution of this Agreement by each of the Vendors constitutes:
(i) an application by such Vendor to subscribe for the Consideration Sharesprice quoted by, and confirmation that it will not be necessary for otherwise on terms no less favourable than those offered by, the Vendor to provide a separate application form to the Parent for the Consideration SharesBroker; and
(ii) such Vendor’s agreement to become within a member further 10 Business Days (or where the disposal is of 3% or less of the Parent for the purposes of section 231(brelevant Seller’s Consideration Shares, 5 Business Days) of the Corporations Act and to be bound by the constitution of the Parent upon the issue of the Consideration Shares.
(k) Upon the expiry of the respective Insider Share Escrow period of 10 Business Days (or 5 Business Days as the case may be) referred to above. For the purposes of this Clause “disposal” includes directly or indirectly, unconditionally or conditionally, mortgaging, pledging, charging, swapping, assigning, selling, transferring, creating an adverse interest over, granting options or other rights over, subscribing, encumber or otherwise disposing, including agreeing to do the same, and Investor Share Escrowthe expression “dispose of” shall be construed accordingly.
5.2 The restrictions contained in Clause 5.1 shall not prohibit any of the Sellers from disposing of Consideration Shares:
(a) in acceptance of a general offer for the whole of the issued equity share capital of the Buyer (other than any equity share capital held by or committed to the offeror and/or persons acting in concert with the offeror) which has either been recommended by the directors of the Buyer or has become unconditional as to acceptances; or
(b) by the execution of an irrevocable commitment to accept a general offer for the whole of the issued equity share capital of the Buyer other than equity share capital held by or committed to the offeror (and/or persons acting in connection with the offeror) which has been or is recommended by the directors of the Buyer or where the irrevocable commitment is expressed to be conditional upon such general offer being so recommended; or
(c) pursuant to any compromise or arrangement providing for the acquisition by any person (or group of persons acting in concert) of 50% or more of the equity share capital of the Buyer and which compromise or arrangement has been sanctioned by the courts; or
(d) where the disposal is to raise funds for a Seller to satisfy his liability to the Buyer pursuant to any Claim in accordance with Clause 6.17.
5.3 The provisions of Clause 5 are without prejudice to any restrictions on dealings in securities of the Company to which the Seller may be subject pursuant to the Company’s code of dealings in the Company's securities (adopted in compliance with Rule 21 of the AIM Rules) or pursuant to other applicable law or regulation, including but not limited to, the Parent shall direct its share registry to release AIM Rules, the Holding Lock on Criminal Justice Act 1993, the Consideration Shares Financial Services and the Parent agrees to take any Markets Act 2000 and all such other steps or actions as may be required to ensure such Consideration Shares are released from the Holding Lock so they may be freely tradeable by the respective Vendor or its appointed brokerMAR.
(l) For 5.4 Notwithstanding the avoidance of doubtRelationship Agreement, nothing in this Agreement is intended to prevent the disposal any other Seller holding, directly or indirectly and together with its Connected Persons, more than 20% of the Consideration Common Shares by the applicable Vendor following the release of such Vendor’s Consideration Shares from escrow upon expiry of the Insider Share Escrow or Investor Share EscrowBuyer shall, as applicableat the request of the Buyer, enter into a relationship agreement with the Buyer in a form similar to the Relationship Agreement.
Appears in 2 contracts
Sources: Share Purchase Agreement (Caledonia Mining Corp PLC), Agreement for the Sale and Purchase of the Share Capital (Toziyana Trust)
Consideration Shares. 4.1 Unless otherwise agreed in writing by the Purchaser and provided that such transferee agrees in writing to be subject to the provisions of clauses 4 and 9.5, each of the Vendors agrees that he or she will not offer, sell, pledge, encumber, transfer or otherwise dispose of any of the Consideration Shares issued and allotted to him or her pursuant to this Agreement (aincluding any shares he or she receives as a result of any stock splits, stock dividends, combinations of shares, recapitalisations or other such events relating to the common stock of SFX which may occur at any time and from time to time from and after Completion) Following execution or any interest therein during the period of one year from the Completion Date (the "Non-Disposal Period") and thereafter unless an exemption from the registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), is available or pursuant to an effective registration statement under the Securities Act and pursuant to an exemption from any applicable United States state securities or blue sky laws or an effective registration or other qualification under any applicable United States state securities or blue sky laws.
4.2 The Purchaser hereby agrees that ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be entitled to transfer the beneficial and/or legal interest in their Consideration Shares to a corporate vehicle of their choice incorporated in the Cayman Islands provided that the said transferee agrees in writing to be subject to the provisions of clauses 4 and 9.5 and further provided that ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ or a member of his immediate family is and will continue to be the ultimate beneficial owner of the corporate vehicle for the Non-Disposal Period in respect of 60% of their Consideration Shares and the Option Period in respect of the Option Shares (as such terms are defined below).
4.3 Each of the Vendors grants to SFX an option (the "Option") exercisable during the period of two years from the Completion Date (the "Option Period") to acquire at US$45.31 per share (which price shall be subject to appropriate adjustment in the event of any stock splits, stock dividends, combinations of shares, recapitalisations or other such events relating to the common stock of SFX which may occur at any time and from time to time from and after Completion), the number of Consideration Shares that is equal to up to forty percent (40%) of the Consideration Shares issued and allotted to each Vendor pursuant to this Agreement (subject to appropriate adjustment in the event of any stock splits, stock dividends, combinations of shares, recapitalisations or other such events relating to the common stock of SFX which may occur at any time and from time to time from and after Completion) (the "Option Shares").
4.4 The Option shall be capable of exercise in whole or in part at any time or times during the Option Period by service of notice in writing on the Vendors provided that if SFX does exercise its option in part, it will treat all the Vendors equally and exercise the Option in respect of the same proportional percentage of each Vendor's Option Shares. Service of such notice shall constitute a legally binding obligation of each of the Vendors to transfer, subject to the Vendors receiving the consideration due in relation to such shares as set out in clause 4.3, such number of Option Shares as is specified in the notice to SFX credited as fully paid with full title guarantee and free and clear of all liens, charges and encumbrances. The purchase price shall be payable to the Vendors' Solicitors in cash within thirty (30) days of the exercise of the Option against delivery of certificates for the Option Shares to be repurchased and the Purchaser shall not be concerned to see to the distribution of the monies so paid.
4.5 Notwithstanding any other provision of this Agreementclause 4 other than clause 4.2, if required whilst the Option remains exercisable in whole or in part, each of the Vendors undertakes that he or she shall not offer, sell, pledge, encumber, transfer or otherwise dispose of the Option Shares (including any shares he or she receives as a result of any stock splits, stock dividends, combinations of shares, recapitalisations or other such events relating to the common stock of SFX which may occur at any time and from time to time from and after Completion) or any interest therein unless otherwise agreed to in writing by the ASX Listing RulesPurchaser and provided that such transferee agrees in writing to be subject to the provisions of this clause 4 and 9.5.
4.6 Each of the Vendors understands and acknowledges that:
4.6.1 the Consideration Shares are being distributed by SFX pursuant to the terms of Regulation S promulgated under the Securities Act ("Regulation S"), which permits securities to be sold to non-U.S. Persons in "offshore transactions" (as defined in Regulation S), subject to certain terms and conditions; and
4.6.2 the Parent Consideration Shares have not been registered under the Securities Act and may not be offered or sold in the United States or to, or for the account or benefit of, any U.S. Person (as defined in Regulation S) unless such securities are registered under the Securities Act or such offer or sale is made pursuant to an exemption from the registration requirements of the Securities Act.
4.7 Each of the Vendors agrees that during the Non-Disposal Period, each of the Vendors shall lodge an Appendix 3B with not engage in any activity for the ASX purpose of, or which may reasonably be expected to announce have the proposed issue of effect of, conditioning the market in the United States for the Consideration Shares.
4.8 Each of the Vendors agrees that from the date hereof until the expiration of the Non-Disposal Period he or she shall not with respect to the Consideration Shares enter into any short sale, sell or purchase any option or other derivative security, enter into any swap, or enter into any other transaction which would have the effect of, directly or indirectly, in whole or in part, hedging the economic or investment risk of such Vendor's investment in the Consideration Shares. Each of the Vendors represents that no such hedging position is currently in effect.
4.9 Each of the Vendors agrees that the certificates for the Consideration Shares to be received shall bear the following legend: "The Shares represented by this certificate have not been registered under the Securities Act of 1933, as amended (b) On the "Securities Act"), or immediately with any state securities commission, and may not be offered, sold, pledged, transferred, encumbered or disposed of by the holder except in accordance with the provisions of Regulation S under the Securities Act, pursuant to registration under the Securities Act, or pursuant to an available exemption from registration; and that hedging transactions involving those securities may not be conducted unless in compliance with the Securities Act". During the twelve month period following the Closing DateNon-Disposal Period, SFX will cause the Parent shall do all removal of such actslegend upon receipt of an opinion of United States counsel, matters or other evidence, in form and things substance reasonably satisfactory to SFX, to the effect that are necessary to procure the official quotation specified Consideration Shares may be sold in brokers transactions under Rule 144. After the Option Period, upon request of any Vendor, SFX will cause the removal of such legend from any Consideration Shares held by the Vendors. In addition, each of the Vendors understands that SFX's transfer agents will not register any transfer of the Consideration Shares on during the ASXNon-Disposal Period and the Option Period, including: (i) applying as applicable, and agrees that SFX may place stop transfer orders with its transfer agents with respect to such certificates.
4.10 Each of the Vendors agrees that certificates for official quotation of the Consideration Shares to be received on Completion shall bear the ASX following legend in addition to the legend set forth above for the duration of the Non-Disposal Period in respect of all of his or her Consideration Shares and the Option Period in respect of 40% of his or her Consideration Shares, as applicable: "In addition to and not in limitation of the restriction set forth above, the Shares represented by lodging this certificate shall be subject to the terms of the Share Purchase Agreement dated September 1999 between the shareholders of Apollo Leisure Group Limited and SFX Entertainment, Inc. (the "Company") which includes provisions affecting the free transferability of the shares represented by this certificate. HOLDERS AND/OR PROSPECTIVE PURCHASERS OR TRANSFEREES OF INTERESTS IN THESE SHARES SHOULD BE AWARE THAT THE COMPANY, UNDER CERTAIN CIRCUMSTANCES, WILL HAVE THE ABSOLUTE RIGHT, WITHOUT NOTICE TO THE HOLDER, TO PREVENT THE TRANSFER OF OR CANCEL THE SHARES REPRESENTED BY THIS CERTIFICATE ON THE BOOKS OF THE COMPANY." Upon the request of a Vendor after the Option Period, SFX will cause the removal of such legend from any Consideration Shares then held by the Vendors.
4.11 Each of the Vendors acknowledges that the Consideration Shares will be "restricted securities" as defined in Rule 144 under the Securities Act and may be resold in the U.S. only after the Non-Disposal Period and only pursuant to the requirements of Rule 144 or otherwise in reliance upon an Appendix 2A, (ii) lodging exemption from registration under the Securities Act.
4.12 Each of the Vendors hereby warrants and undertakes to and with the ASX Purchaser that:
4.12.1 he or she has downloaded to paper format from the internet website maintained by the United States Securities and Exchange Commission ("SEC") at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇ and reviewed the most recent annual report to stockholders of SFX, the latest available annual report of SFX on Form 10-K, as amended; any of SFX's quarterly reports on Form 10-Q filed since such reports; any of SFX's filings on Form 8-K since such reports; and has reviewed a cleansing notice statement of certain risk factors associated with investment in accordance the Consideration Shares as set out in SFX's Form 10-K, as amended (the "Risk Factors") and in all cases consents to his or her receipt of such reports to the extent received in this manner;
4.12.2 he or she was provided with section 708A(5)(e) the opportunity to ask questions of and receive answers from SFX or its representative, concerning the Corporations Act in respect operations, business and financial condition of SFX, and all such questions have been answered to his or her full satisfaction and any information necessary to verify such responses has been made available to him or her;
4.12.3 he or she has received such documents, materials and information as he or she deems necessary or appropriate for evaluation of the Consideration Shares, and further confirms that he or she has carefully read and understands these materials and has made such further investigation as was deemed appropriate to obtain additional information to verify the accuracy of such materials;
4.12.4 he or she confirms that the Consideration Shares were not offered to him or her by any means of general solicitation or general advertising;
4.12.5 he or she confirms that he has such knowledge and experience in financial and business matters so that he or she is capable of evaluating the merits and risks of an investment in the Consideration Shares and has the capacity to protect his or her own interests, understands that such investment involves a high degree of risk, has carefully considered the Risk Factors before making his decision to make the investment and can bear the entire economic risk of the investment;
4.12.6 he or she understands that there is no assurance that any exemption from registration under the Securities Act will be available and that, even if available, such exemption may not allow him or her to transfer all or any portion of the Consideration Shares under the circumstances, in the amounts or at the times he or she might propose;
4.12.7 he or she will be acquiring the Consideration Shares for his or her own account, for investment purposes only, and not with a view towards the sale or other distribution thereof, in whole or in part;
4.12.8 he or she understands that the Consideration Shares have not been approved or disapproved by the SEC or by any other US federal or state agency or any UK regulatory authority;
4.12.9 he or she understands that: (i) there are restrictions on the transferability of the Consideration Shares; (ii) owners of Consideration Shares have no right to require the Consideration Shares to be registered under the Securities Act; and (iii) causing its share registry it may not be possible for him or her to enter sell his or her Consideration Shares and accordingly, he or she may have to hold the Consideration Shares, and bear the entire economic risk of this investment for an extended period of time;
4.12.10 he or she is not a U.S. Person; he or she is executing such undertaking outside the United States; he or she has received no offer of the Consideration Shares in the share register United States; and he or she has made no offer or order to purchase the Consideration Shares in the United States; and
4.12.11 he or she has not relied upon any information or representation with regard to SFX or the Consideration Shares apart from the information in clause 4.14.
4.13 SFX shall prepare and submit to the New York Stock Exchange, or such other national securities exchange on which SFX's Class A common stock is principally traded, a listing application covering the Consideration Shares and shall use its commercially reasonable efforts to obtain, prior to any permitted sale by a Vendor, approval for the listing of such Consideration Shares subject to official notice of issuance. The Vendors shall, without any expenditure of funds, co-operate fully with SFX with respect to such listing and any filings made with the SEC by SFX.
4.14 SFX hereby warrants to each of the Parent; Vendors as follows:
4.14.1 SFX is a corporation duly organised, validly existing and (iv) requesting its share registry to issue to each Vendor a holding statement in respect good standing under the laws of the relevant Consideration Sharesstate of Delaware with full corporate power and corporate authority to enter into this Agreement and each of the agreements contemplated hereby to be executed by it and to perform its obligations hereunder and thereunder.
4.14.2 This Agreement and all documents required to be executed and delivered by SFX hereunder at Completion have been or will be duly authorised, executed and delivered on behalf of SFX. This Agreement and all agreements required hereunder to be executed and delivered on behalf of SFX, constitute the legal, valid and binding obligations of SFX enforceable against it in accordance with their respective terms, except that enforceability may be limited by bankruptcy, insolvency, moratorium or other similar laws of general application affecting the enforceability of creditors' rights generally or by general principles of equity (whether applied by a court of law or equity). Neither the execution of this Agreement or the consummation of the transactions provided for herein will result in any breach of, acceleration of, maturity of, or constitute any default under, except to the extent waived, any indentures, mortgages, promissory notes, contracts or agreements to which either SFX is a party or by which it or its properties are bound or will cause it to violate any applicable legal requirements, judgement, order or decree of any governmental authority or any provision of the Certificate of Incorporation or bylaws of SFX.
4.14.3 SFX has authorised capital stock of (a) 100,000,000 shares of Class A common stock, par value $0.01 per share, of which 63,319,143 shares were issued and outstanding and no shares were held as treasury stock as at close of business on 13 September 1999; (b) 10,000,000 shares of Class B common stock, par value $0.01 per share, of which 2,545,557 were issued and outstanding as at close of business on 13 September 1999 and (c) If 25,000,000 shares of preferred stock, par value $0.01 per share, of which no shares were issued and outstanding as of the number date hereof. All of the issued shares of common stock of SFX have been duly authorised and validly issued, are fully paid and non-assessable and constitute the only issued and outstanding voting capital shares of SFX. The Consideration Shares to be issued to a Vendor is not a whole number, then: (i) any fractional entitlement to Consideration exchanged for the Sale Shares which is 0.5 or greater will be rounded up issued out of authorised but unissued shares, and there are no outstanding options, warrants, rights or calls relating to the nearest whole number of Consideration Shares and (ii) any fractional entitlement to Consideration Shares which is less than 0.5 will be rounded down to the nearest whole number of Consideration Shares. Any difference in the Purchase Price resulting from such rounding will be reflected in accordance with the post-Closing adjustments pursuant to Section 2.7.
(d) That portion of the Purchase Price payable in Consideration Shares which are issued to Insiders will be escrowed (i.e., prohibited from trading), held on the Issuer Sponsored Subregister and subject to a Holding Lock for a period of twelve (12) months after Closing (“Insider Share Escrow”) other than pursuant to the terms of this Agreement and an escrow restriction deed entered into between each Insider and the Parent (the “Insider Share Escrow Agreements”), substantially in the form attached as Schedule 2.5.3(D), heretoAgreement.
(e) That portion 4.14.4 Upon delivery of the Purchase Price payable in Consideration Shares which are issued to Investors will be escrowed (i.e., prohibited from trading), held on the Issuer Sponsored Subregister and subject to a Holding Lock for a period of three (3) months from Closing (“Investor Share Escrow”) pursuant to the terms of this Agreement and an escrow restriction deed entered into between each Investor and the Parent (the “Investor Share Escrow Agreements”), substantially in the form attached as Schedule 2.5.3(E), hereto.
(f) During the period of the Insider Share Escrow or Investor Share Escrow, as applicable, and subject to the terms of the Insider Share Escrow Agreements or Investor Share Escrow Agreements, as applicable, the applicable Vendor shall not do any of the following:
(i) dispose of, or agree or offer to dispose of, any of the Consideration Shares;
(ii) create or agree or offer to create, any Encumbrance over the Consideration Shares; or
(iii) do, or omit to do, any act if the act or omission would have the effect of transferring effective ownership or control of the Consideration Shares.
(g) The obligations set out in Sections 2.5.3(d), 2.5.3(e) and 2.5.3(f) do not apply if the disposal arises as a result of or pursuant to:
(i) the acceptance of a bona fide takeover bid made under chapter 6 of the Corporations Act in respect of the Consideration Shares;
(ii) the transfer or cancellation of the Consideration Shares held in escrow pursuant to the Insider Share Escrow and Investor Share Escrow as part of a scheme of arrangement under Part 5.1 of the Corporations Act;
(iii) participation in an equal access share buy-back, equal capital return or equal capital reduction, in each case, made in accordance with the Corporations Act; or
(iv) if the disposal is required by applicable Law. all of which shall be as set forth in the Insider Share Escrow Agreements or Investor Share Escrow Agreements, as applicable.
(h) The Parent shall, not less than five (5) Business Days (as defined in the ASX Listing Rules) before the end of the period of the Insider Share Escrow or Investor Share Escrow, as applicable, notify the ASX of the release from escrow of the applicable Consideration Shares in accordance with the ASX Listing Rule 3.10A.
(i) Each Vendor shall execute all agreements as may be reasonably requested by the ASX or the Purchaser solely to give effect to this Section 2.5.3.
(j) Execution of this Agreement by each of the Vendors constitutes:
(i) an application by such Vendor to subscribe for the Consideration Shares, and confirmation that it will not be necessary for the Vendor to provide a separate application form to the Parent for the Consideration Shares; and
(ii) such Vendor’s agreement to become a member of the Parent for the purposes of section 231(b) of the Corporations Act and to be bound by the constitution of the Parent upon the issue of the Consideration Shares.
(k) Upon the expiry of the respective Insider Share Escrow and Investor Share Escrow, the Parent shall direct its share registry to release the Holding Lock on the Consideration Shares and the Parent agrees to take any and all such other steps or actions as may be required to ensure such Consideration Shares are released from the Holding Lock so they may be freely tradeable by the respective Vendor or its appointed broker.
(l) For the avoidance of doubt, nothing in this Agreement is intended to prevent the disposal of the Consideration Shares by the applicable Vendor following the release of such Vendor’s Consideration Shares from escrow upon expiry of the Insider Share Escrow or Investor Share Escrow, as applicable.Consi
Appears in 1 contract
Consideration Shares. (a) Following execution of this Agreement, if required by 3.2.1 On the ASX Listing Rules, the Parent shall lodge an Appendix 3B with the ASX to announce the proposed issue of the Consideration Shares.
(b) On or immediately following the Closing Completion Date, the Parent shall do all such acts, matters and things that are necessary to procure the official quotation of the Consideration Shares on the ASX, including: (i) applying in consideration for official quotation of the Consideration Shares on the ASX by lodging an Appendix 2A, (ii) lodging with the ASX a cleansing notice in accordance with section 708A(5)(e) of the Corporations Act in respect of the Consideration Shares, (iii) causing its share registry to enter the Consideration Shares in the share register of the Parent; and (iv) requesting its share registry to issue to each Vendor a holding statement in respect of the relevant Consideration Shares.
(c) If the number of Consideration ▇▇. ▇▇▇▇▇▇ tendering his Exchange Shares to be issued to a Vendor is not a whole number, then: (i) any fractional entitlement to Consideration Shares which is 0.5 or greater will be rounded up to the nearest whole number of Consideration Shares and (ii) any fractional entitlement to Consideration Shares which is less than 0.5 will be rounded down to the nearest whole number of Consideration Shares. Any difference in the Purchase Price resulting from such rounding will be reflected in accordance with the post-Closing adjustments pursuant to Section 2.7.
(d) That portion of the Purchase Price payable in Consideration Shares which are issued to Insiders will be escrowed (i.e., prohibited from trading), held on the Issuer Sponsored Subregister and subject to a Holding Lock for a period of twelve (12) months after Closing (“Insider Share Escrow”) pursuant to the terms of this Agreement and an escrow restriction deed entered into between each Insider and the Parent (the “Insider Share Escrow Agreements”), substantially in the form attached as Schedule 2.5.3(D), hereto.
(e) That portion of the Purchase Price payable in Consideration Shares which are issued to Investors will be escrowed (i.e., prohibited from trading), held on the Issuer Sponsored Subregister and subject to a Holding Lock for a period of three (3) months from Closing (“Investor Share Escrow”) pursuant to the terms of this Agreement and an escrow restriction deed entered into between each Investor and the Parent (the “Investor Share Escrow Agreements”), substantially in the form attached as Schedule 2.5.3(E), hereto.
(f) During the period of the Insider Share Escrow or Investor Share Escrow, as applicable, and subject to the terms of the Insider Share Escrow Agreements or Investor Share Escrow Agreements, as applicable, the applicable Vendor shall not do any of the following:
(i) dispose of, or agree or offer to dispose of, any of the Consideration Shares;
(ii) create or agree or offer to create, any Encumbrance over the Consideration Shares; or
(iii) do, or omit to do, any act if the act or omission would have the effect of transferring effective ownership or control of the Consideration Shares.
(g) The obligations set out in Sections 2.5.3(d), 2.5.3(e) and 2.5.3(f) do not apply if the disposal arises as a result of or pursuant to:
(i) the acceptance of a bona fide takeover bid made under chapter 6 of the Corporations Act in respect of the Consideration Shares;
(ii) the transfer or cancellation of the Consideration Shares held in escrow pursuant to the Insider Share Escrow and Investor Share Escrow as part of a scheme of arrangement under Part 5.1 of the Corporations Act;
(iii) participation in an equal access share buy-back, equal capital return or equal capital reduction, in each case, made in accordance with the Corporations Act; or
(iv) if the disposal is required by applicable Law. all of which shall be as set forth in the Insider Share Escrow Agreements or Investor Share Escrow Agreements, as applicable.
(h) The Parent shall, not less than five (5) Business Days (as defined in the ASX Listing Rules) before the end of the period of the Insider Share Escrow or Investor Share Escrow, as applicable, notify the ASX of the release from escrow of the applicable Consideration Shares in accordance with the ASX Listing Rule 3.10A.
(i) Each Vendor shall execute all agreements as may be reasonably requested by the ASX or the Purchaser solely to give effect to this Section 2.5.3.
(j) Execution of this Agreement by each of the Vendors constitutes:
(i) an application by such Vendor to subscribe exchanged for the Consideration Shares, the latter shall be allotted to ▇▇. ▇▇▇▇▇▇ credited as fully paid and confirmation that it free from all Encumbrances and shall rank in full for all dividends and in all other respects carry the same rights as the existing ordinary share capital of the Purchaser in issue on the Completion Date albeit issued pursuant to an exemption from registration (such as a private placement to accredited investors or an offshore placement pursuant to Regulation S of the 1933 Securities Act).
3.2.2 The Consideration Shares will be restricted securities and will not be necessary freely tradable in the public market for the Vendor to provide a separate application form to the Parent for the Consideration Shares; and
(ii) such Vendor’s agreement to become a member of the Parent for the purposes of section 231(b) of the Corporations Act and to be bound by the constitution of the Parent upon the issue of the Consideration Shares.
(k) Upon the expiry of the respective Insider Share Escrow and Investor Share Escrow, the Parent shall direct its share registry to release the Holding Lock on the Consideration Shares time period between Completion and the Parent agrees to take any and all such other steps or actions as may be required to ensure such Consideration Shares are released from the Holding Lock so they may be freely tradeable by the respective Vendor or its appointed broker.
(l) For the avoidance of doubt, nothing in this Agreement is intended to prevent the disposal actual registration of the Consideration Shares by as per the applicable Vendor following provisions hereunder. Subject to certain limitations, an exemption from registration is generally available to allow the release public re-sale of restricted securities one year after the date the shares are issued. The Purchaser agrees to file for registration of the shares for resale on a Form S-3 resale registration statement with the United States Securities and Exchange Commission (“SEC”) within 120 days of Completion (provided that in the event the resale registration becomes effective, the Purchaser does not promise to maintain the effectiveness of such Vendor’s registration under all circumstances as it may allow it to lapse if its business would be harmed). The Purchaser represents that whenever the registration will have become effective, ▇▇. ▇▇▇▇▇▇ will have an unrestricted to sell his Consideration Shares from escrow upon expiry on the Nasdaq. ▇▇ ▇▇▇▇▇▇ agrees to pay for the registration costs of such filing up to a maximum amount of USD 15,000.
3.2.3 If and when ▇▇. ▇▇▇▇▇▇ desires to sell the Consideration Shares, ▇▇. ▇▇▇▇▇▇ and the Purchaser shall act in good faith with one another to the extent permitted by law and so as to comply with the Purchaser’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy, to facilitate block trades or similar negotiated placements of the Insider Share Escrow or Investor Share EscrowConsideration Shares in order, as applicablenotably, to minimize market disruption resulting from offering large numbers of shares to the market at the same time.
Appears in 1 contract
Consideration Shares. (a) Following execution For the purposes of clause 3.1(b) the value of each Consideration Share shall be US$1.7921 (GBP£1.4337).
(b) In the event that:
(i) 2017 EBITDA (as defined in, and as may be adjusted in accordance with, Schedule 9) is less than £2,400,000 as determined by an audit of the Company conducted by the accountants of the Buyer; or
(ii) 2018 EBITDA (as defined in, and as may be adjusted in accordance with, Schedule 9) is less than £2,400,000 as determined by an audit of the Company conducted by the accountants of the Buyer, the Buyer shall send a written notice to the Sellers, upon receipt of which the Sellers shall forfeit and return to WTG the Clawback Consideration Shares in accordance with the Clawback Escrow Agreement.
(c) In connection with the issue of the Consideration Shares each Seller hereby severally warrants to WTG that each of the following statements are true and correct on the date hereof:
(i) he is aware that the Consideration Shares have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and that the Consideration Shares are deemed to constitute “restricted securities” under Rule 144 promulgated under the Securities Act (“Rule 144”). He also understands that the Consideration Shares are being offered and sold pursuant to an exemption from registration contained in the Securities Act based in part upon each Seller’s warranties contained in this clause 3.2;
(ii) he is obtaining the Consideration Shares for his own account and has no present intention of distributing or selling the Consideration Shares except as permitted under the Securities Act, applicable state securities Laws and the Lock Up Agreement;
(iii) he has sufficient knowledge and experience in business and financial matters to evaluate WTG, its proposed activities and the risks and merits of this Agreementinvestment. He has the ability to accept the high risk and lack of liquidity inherent in this type of investment;
(iv) he had an opportunity to discuss the WTG’s business, management and financial affairs with directors, officers and management of WTG. He has also had the opportunity to ask questions of and receive answers from WTG and its management regarding the terms and conditions of this investment. He understands the significant risks of this investment;
(v) each Seller has the capacity to protect its own interests in connection with the issuance of the Shares by virtue of its business or financial expertise;
(vi) he understands that the Consideration Shares must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. He has been advised or is aware of the provisions of Rule 144, as in effect from time to time, which permit limited resale of shares purchased in a private placement subject to the satisfaction of certain conditions, including, among other things, the availability of certain current public information about WTG, the resale occurring following the required holding period under Rule 144, and the number of shares being sold during any three month period not exceeding specified limitations;
(vii) hereby confirms that he has satisfied himself as to the full observance of the Laws of his jurisdiction of residence in connection with the receipt of the Consideration Shares including (i) the legal requirements within his jurisdiction for the receipt of the Consideration Shares (ii) any foreign exchange restrictions applicable to such acquisition, (iii) any government or other consents that may need to be obtained in connection with such acquisition, and (iv) the income tax and other tax consequences, if required by any, that may be relevant to the ASX Listing Rulespurchase, the Parent shall lodge an Appendix 3B with the ASX to announce the proposed issue holding, redemption, sale or transfer of the Consideration Shares.
(bviii) On or immediately following he is a certified high net worth individual within the Closing Date, the Parent shall do all such acts, matters and things that are necessary to procure the official quotation meaning of article 48 of the Consideration Shares on the ASX, including: Financial Services and Markets ▇▇▇ ▇▇▇▇ (iFinancial Promotion) applying for official quotation of the Consideration Shares on the ASX by lodging an Appendix 2A, Order 2005 (ii) lodging with the ASX a cleansing notice in accordance with section 708A(5)(e) of the Corporations Act in respect of the Consideration Shares, (iii) causing its share registry to enter the Consideration Shares in the share register of the Parent; and (iv) requesting its share registry to issue to each Vendor a holding statement in respect of the relevant Consideration Shares.
(c) If the number of Consideration Shares to be issued to a Vendor is not a whole number, then: (i) any fractional entitlement to Consideration Shares which is 0.5 or greater will be rounded up to the nearest whole number of Consideration Shares and (ii) any fractional entitlement to Consideration Shares which is less than 0.5 will be rounded down to the nearest whole number of Consideration Shares. Any difference in the Purchase Price resulting from such rounding will be reflected in accordance with the post-Closing adjustments pursuant to Section 2.7.
(d) That portion of the Purchase Price payable in Consideration Shares which are issued to Insiders will be escrowed (i.e., prohibited from tradingas amended), held on the Issuer Sponsored Subregister and subject to a Holding Lock for a period of twelve (12) months after Closing (“Insider Share Escrow”) pursuant to the terms of this Agreement and an escrow restriction deed entered into between each Insider and the Parent (the “Insider Share Escrow Agreements”), substantially in the form attached as Schedule 2.5.3(D), hereto.
(e) That portion of the Purchase Price payable in Consideration Shares which are issued to Investors will be escrowed (i.e., prohibited from trading), held on the Issuer Sponsored Subregister and subject to a Holding Lock for a period of three (3) months from Closing (“Investor Share Escrow”) pursuant to the terms of this Agreement and an escrow restriction deed entered into between each Investor and the Parent (the “Investor Share Escrow Agreements”), substantially in the form attached as Schedule 2.5.3(E), hereto.
(f) During the period of the Insider Share Escrow or Investor Share Escrow, as applicable, and subject to the terms of the Insider Share Escrow Agreements or Investor Share Escrow Agreements, as applicable, the applicable Vendor shall not do any of the following:
(i) dispose of, or agree or offer to dispose of, any of the Consideration Shares;
(iiix) create or agree or offer to create, any Encumbrance over he resides at the Consideration Shares; or
(iii) do, or omit to do, any act if the act or omission would have the effect of transferring effective ownership or control of the Consideration Shares.
(g) The obligations set out in Sections 2.5.3(d), 2.5.3(e) and 2.5.3(f) do not apply if the disposal arises as a result of or pursuant to:
(i) the acceptance of a bona fide takeover bid made under chapter 6 of the Corporations Act in respect of the Consideration Shares;
(ii) the transfer or cancellation of the Consideration Shares held in escrow pursuant to the Insider Share Escrow and Investor Share Escrow as part of a scheme of arrangement under Part 5.1 of the Corporations Act;
(iii) participation in an equal access share buy-back, equal capital return or equal capital reduction, in each case, made in accordance with the Corporations Act; or
(iv) if the disposal is required by applicable Law. all of which shall be as address set forth next to his name in the Insider Share Escrow Agreements or Investor Share Escrow Agreements, as applicable.
(h) The Parent shall, not less than five (5) Business Days (as defined in the ASX Listing Rules) before the end of the period of the Insider Share Escrow or Investor Share Escrow, as applicable, notify the ASX of the release from escrow of the applicable Consideration Shares in accordance with the ASX Listing Rule 3.10A.
(i) Each Vendor shall execute all agreements as may be reasonably requested by the ASX or the Purchaser solely to give effect to this Section 2.5.3.
(j) Execution of this Agreement by each of the Vendors constitutes:
(i) an application by such Vendor to subscribe for the Consideration Shares, and confirmation that it will not be necessary for the Vendor to provide a separate application form to the Parent for the Consideration SharesSchedule 1 hereto; and
(iix) following execution of this Agreement, he has an individual net worth, or a joint net worth with his spouse, in excess of $1,000,000; excluding the value of his primary residence and any indebtedness secured by such Vendor’s agreement residence (except to become a member the extent that the indebtedness exceeds the estimated fair market value of the Parent for residence, in which case such excess shall be included in the purposes determination of section 231(b) his net worth); or has had an individual income in excess of $200,000 in each of the Corporations Act two most recent years; or a joint income with his spouse in excess of $300,000 in each of those years, and to be bound by has a reasonable expectation of reaching the constitution of same income level in the Parent upon the issue of the Consideration Sharescurrent year.
(k) Upon the expiry of the respective Insider Share Escrow and Investor Share Escrow, the Parent shall direct its share registry to release the Holding Lock on the Consideration Shares and the Parent agrees to take any and all such other steps or actions as may be required to ensure such Consideration Shares are released from the Holding Lock so they may be freely tradeable by the respective Vendor or its appointed broker.
(l) For the avoidance of doubt, nothing in this Agreement is intended to prevent the disposal of the Consideration Shares by the applicable Vendor following the release of such Vendor’s Consideration Shares from escrow upon expiry of the Insider Share Escrow or Investor Share Escrow, as applicable.
Appears in 1 contract
Sources: Share Purchase Agreement (Wireless Telecom Group Inc)
Consideration Shares. The Parties acknowledge and agree that the issuance of the Consideration Shares and Consideration Warrants pursuant to Section 2.2 above is subject to the following:
(a) Following execution of this Agreementall Consideration Shares, if required by the ASX Listing RulesPrivate Placement Shares, the Parent shall lodge an Appendix 3B with the ASX to announce the proposed issue Consideration Warrants and First Majestic Shares issued upon exercise of the Consideration Warrants will be subject to a hold period under applicable Securities Laws and TSX and NYSE policies during which time they may not be re-sold, transferred or otherwise disposed of except in accordance with applicable Securities Laws and TSX and NYSE policies, and the share certificates representing the Consideration Shares, Private Placement Shares, Consideration Warrants and First Majestic Shares issued upon exercise of the Consideration Warrants will be required to bear the legend substantially as follows: "UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [THE DATE THAT IS FOUR MONTHS AND A DAY AFTER THE CLOSING DATE].
(b) On or immediately following The Vendor acknowledges that the Closing Date, the Parent shall do all such acts, matters and things that are necessary to procure the official quotation of the Consideration Shares on the ASX, including: (i) applying for official quotation of the Consideration Shares on the ASX by lodging an Appendix 2A, (ii) lodging with the ASX a cleansing notice in accordance with section 708A(5)(e) of the Corporations Act in respect of Purchaser is issuing the Consideration Shares, (iii) causing its share registry Private Placement Shares and Consideration Warrants under exemptions from the prospectus requirements of applicable Securities Laws and, as a consequence, certain protections, rights and remedies provided by applicable Securities Laws, including statutory rights of rescission or damages, will not be available to enter the Consideration Shares in the share register of the Parent; and (iv) requesting its share registry to issue to each Vendor a holding statement in respect of the relevant Consideration Shares.Vendor;
(c) If Until such time as the number of Consideration Shares to be issued to a Vendor is not a whole number, then: (i) any fractional entitlement to Consideration Shares which is 0.5 or greater will be rounded up to the nearest whole number of Consideration Shares and (ii) any fractional entitlement to Consideration Shares which is holds less than 0.5 will be rounded down to the nearest whole number of Consideration Shares. Any difference in the Purchase Price resulting from such rounding will be reflected in accordance with the post-Closing adjustments pursuant to Section 2.7.
(d) That portion 5% of the Purchase Price payable in Consideration outstanding First Majestic Shares which are issued to Insiders will be escrowed (i.e., prohibited from tradingon a non-diluted basis), held on the Issuer Sponsored Subregister and subject to a Holding Lock for a period of twelve (12) months after Closing (“Insider Share Escrow”) pursuant to the terms of this Agreement and an escrow restriction deed entered into between each Insider and the Parent (the “Insider Share Escrow Agreements”), substantially in the form attached as Schedule 2.5.3(D), hereto.
(e) That portion of the Purchase Price payable in Consideration Shares which are issued to Investors will be escrowed (i.e., prohibited from trading), held on the Issuer Sponsored Subregister and subject to a Holding Lock for a period of three (3) months from Closing (“Investor Share Escrow”) pursuant to the terms of this Agreement and an escrow restriction deed entered into between each Investor and the Parent (the “Investor Share Escrow Agreements”), substantially in the form attached as Schedule 2.5.3(E), hereto.
(f) During the period of the Insider Share Escrow or Investor Share Escrow, as applicable, and subject to the terms of the Insider Share Escrow Agreements or Investor Share Escrow Agreements, as applicable, the applicable Vendor shall not do assign, deal in, sell, trade or transfer any First Majestic Shares other than through the facilities of an exchange and not more than that number of First Majestic Shares that is greater than 20% of the following:
(i) dispose of, or agree or offer to dispose of, any average daily trading volume of the Consideration First Majestic Shares;
, on either the TSX or NYSE (ii) create or agree or offer to createsuch other stock exchange the First Majestic Shares are then listed), any Encumbrance over for the Consideration Shares; or
(iii) do, or omit to do, any act if five preceding trading-days without the act or omission would have the effect of transferring effective ownership or control prior written approval of the Consideration Shares.
Purchaser (g) The obligations set out in Sections 2.5.3(d), 2.5.3(e) and 2.5.3(f) do not apply if the disposal arises as a result of or pursuant to:
(i) the acceptance of a bona fide takeover bid made under chapter 6 of the Corporations Act in respect of the Consideration Shares;
(ii) the transfer or cancellation of the Consideration Shares held in escrow pursuant to the Insider Share Escrow and Investor Share Escrow as part of a scheme of arrangement under Part 5.1 of the Corporations Act;
(iii) participation in an equal access share buy-back, equal capital return or equal capital reductionwhich approval may be conditional upon transferee acknowledging, in each casewriting, made in accordance with the Corporations Act; or
(iv) if the disposal is required by applicable Law. all of which shall be as set forth in the Insider Share Escrow Agreements or Investor Share Escrow Agreements, as applicable.
(h) The Parent shall, not less than five (5) Business Days (as defined in the ASX Listing Rules) before the end of the period of the Insider Share Escrow or Investor Share Escrow, as applicable, notify the ASX of the release from escrow of the applicable Consideration Shares in accordance with the ASX Listing Rule 3.10A.
(i) Each Vendor shall execute all agreements as may be reasonably requested by the ASX or the Purchaser solely to give effect to this Section 2.5.3.
(j) Execution of this Agreement by each of the Vendors constitutes:
(i) an application by such Vendor to subscribe for the Consideration Shares, and confirmation that it will not be necessary for the Vendor to provide a separate application form to the Parent for the Consideration Shares; and
(ii) such Vendor’s agreement to become a member of the Parent for the purposes of section 231(b) of the Corporations Act and to be bound by the constitution terms of the Parent upon the issue Section 2.7 of the Consideration Sharesthis Agreement).
(k) Upon the expiry of the respective Insider Share Escrow and Investor Share Escrow, the Parent shall direct its share registry to release the Holding Lock on the Consideration Shares and the Parent agrees to take any and all such other steps or actions as may be required to ensure such Consideration Shares are released from the Holding Lock so they may be freely tradeable by the respective Vendor or its appointed broker.
(l) For the avoidance of doubt, nothing in this Agreement is intended to prevent the disposal of the Consideration Shares by the applicable Vendor following the release of such Vendor’s Consideration Shares from escrow upon expiry of the Insider Share Escrow or Investor Share Escrow, as applicable.
Appears in 1 contract
Sources: Share Purchase Agreement (First Majestic Silver Corp)
Consideration Shares. (a) Following execution of this Agreement, if required by the ASX Listing Rules, the Parent shall lodge an Appendix 3B with the ASX to announce the proposed issue of the Consideration Shares.
(b) On or immediately following the Closing Date, the Parent shall do all such acts, matters and things The Parties agree that are necessary to procure the official quotation of the Consideration Shares on the ASX, including: (i) applying for official quotation of the Consideration Shares on the ASX by lodging an Appendix 2A, (ii) lodging with the ASX a cleansing notice in accordance with section 708A(5)(e) of the Corporations Act in respect of the Consideration Shares, (iii) causing its share registry to enter the Consideration Shares in the share register of the Parent; and (iv) requesting its share registry to issue to each Vendor a holding statement in respect of the relevant Consideration Shares.
(c) If the number of Consideration Shares to be issued to a Vendor is not a whole number, then: (i) any fractional entitlement to Consideration Shares which is 0.5 or greater will be rounded up to the nearest whole number of Consideration Shares and (ii) any fractional entitlement to Consideration Shares which is less than 0.5 will be rounded down to the nearest whole number of Consideration Shares. Any difference in the Purchase Price resulting from such rounding will be reflected in accordance with the post-Closing adjustments pursuant to Section 2.7.
(d) That portion of the Purchase Price payable in Consideration Shares which are issued to Insiders will be escrowed (i.e., prohibited from trading), held on the Issuer Sponsored Subregister and subject to a Holding Lock for a period of twelve (12) months after Closing (“Insider Share Escrow”) pursuant to the terms of this Agreement and an escrow restriction deed entered into between each Insider and the Parent (the “Insider Share Escrow Agreements”), substantially in the form attached as Schedule 2.5.3(D), hereto.
(e) That portion of the Purchase Price payable in Consideration Shares which are issued to Investors will be escrowed (i.e., prohibited from trading), held on the Issuer Sponsored Subregister and subject to a Holding Lock for a period of three (3) months from Closing (“Investor Share Escrow”) pursuant to the terms of this Agreement and an escrow restriction deed entered into between each Investor and the Parent (the “Investor Share Escrow Agreements”), substantially in the form attached as Schedule 2.5.3(E), hereto.
(f) During the period of the Insider Share Escrow or Investor Share Escrow, as applicable, and subject to the terms of the Insider Share Escrow Agreements or Investor Share Escrow Agreements, as applicable, the applicable Vendor shall not do any of the following:
(ia) dispose ofconcurrent with completion of the Going Public Transaction, or agree or offer to dispose of, any 15,000,000 of the Consideration Shares (being 30% of the aggregate Consideration Shares) will automatically convert into Resulting Issuer Shares;
(iib) create or agree or offer to create, any Encumbrance over the Consideration Shares; or
(iii) do, or omit to do, any act if the act or omission would have the effect balance of transferring effective ownership or control 35,000,000 of the Consideration Shares (being 70% of the aggregate Consideration Shares.
) (gthe “Remaining Shares”) The obligations set out in Sections 2.5.3(d)will remain as non-voting Preferred Shares of the Purchaser or the Resulting Issuer on closing of the Going Public Transaction, 2.5.3(e) and 2.5.3(f) do not apply if the disposal arises as a result of or pursuant toVendor shall have the option to elect to convert such shares into Resulting Issuer Shares either:
(i) in connection with the acceptance Vendor’s distribution of a bona fide takeover bid made under chapter 6 Resulting Issuer Shares to its shareholders in accordance with Section 2.05; or
(ii) at any other time, which option shall be exercised by the Vendor providing the Resulting Issuer written notice, in which event the Remaining Shares shall convert to Resulting Issuer Shares on that date which is 61 days after delivery of such written notice to the Resulting Issuer;
(c) all Consideration Shares (or Resulting Issuer preferred shares issued in exchange therefore) will convert into common shares of Purchaser (or Resulting Issuer Shares as applicable) at the option of the Corporations Act in respect Vendor, if any of the Consideration Sharesfollowing occur, without the prior written consent of the Vendor:
(i) other than the Going Public Transaction, the Purchaser or Resulting Issuer, as applicable, solicits, negotiates, initiates, knowingly encourages, cooperates with or facilitates (including by way of furnishing any confidential information, any site visit or entering into any form of agreement, arrangement or understanding) the submission, initiation or continuation of any oral or written inquiries or proposals or expressions of interest regarding, constituting or that may reasonably be expected to lead to an asset acquisition or sale offer, property option, joint venture, shareholder proposal, business combination, takeover bid, qualifying transaction, change of control, or any form of similar transaction for securities, material assets or property of the Purchaser or Resulting Issuer, including the Properties;
(ii) the transfer or cancellation board of directors of the Consideration Shares held in escrow pursuant to the Insider Share Escrow and Investor Share Escrow Purchaser or Resulting Issuer, as part of a scheme of arrangement under Part 5.1 of the Corporations Actapplicable, exceeds five (5) directors;
(iii) participation the board of directors of the Purchaser or Resulting Issuer, as applicable, includes a director that holds a board or management position with a competitor of the Vendor, and whether a Person is a ‘competitor’ is determined by the sole discretion of the Vendor, acting reasonably;
(iv) the Purchaser or Resulting Issuer, as applicable, take, or have taken against them, any act or proceeding in an equal access share buy-backconnection with the dissolution, equal capital return liquidation, winding up, bankruptcy, reorganization, compromise or equal capital reductionarrangement of the Purchaser or Resulting Issuer, as applicable, including the appointment of a trustee, receiver, manager or other administrator of the Purchaser or Resulting Issuer or any of their material properties or assets; or
(v) there is a material breach of this Agreement by the Purchaser or Resulting Issuer, as applicable, and such breach is not cured by such Party within five (5) days of the Vendor making the Party aware of the breach;
(d) in each casethe case of the Going Public Transaction, made or any other transaction contemplated by Section 2.03(c)(i), to the extent that (i) a shareholder resolution is required to approve such transaction, it shall be a term of the Preferred Shares that such shares can be voted on the same terms as common shares of the Purchaser or Resulting Issuer Shares (as applicable), and on closing of such transaction, such Preferred Shares will be subject to the same treatment as the common shares of the Purchaser or Resulting Issuer Shares (as applicable), or (ii) a shareholder resolution is not required, then such Going Public Transaction must be consented to by the Vendor in writing prior to the Purchaser proceeding therewith;
(e) all Consideration Shares will be issued in accordance with the Corporations Act; or
(iv) if applicable securities laws in Canada and the disposal is required by United States, and will be subject to the restrictions on sale applicable Lawin such jurisdictions. all of which shall be as set forth in The Vendor acknowledges that the Insider Share Escrow Agreements or Investor Share Escrow Agreements, as applicable.
(h) The Parent shall, not less than five (5) Business Days (as defined in the ASX Listing Rules) before the end of the period of the Insider Share Escrow or Investor Share Escrow, as applicable, notify the ASX of the release from escrow of the applicable Consideration Shares may be subject to escrow or seed share resale restrictions in accordance with Applicable Laws in connection with the ASX Listing Rule 3.10A.
(i) Each Going Public Transaction. The Vendor shall agrees to execute and deliver, and, if applicable, agrees to cause any permitted assign to execute and deliver, any agreements, certificates or undertakings which are necessary, in accordance with Applicable Laws, to evidence any required escrow arrangements, along with any other questionnaires or personal information forms required under such Applicable Laws. In addition, the Vendor acknowledges that securities dealers retained by the Purchaser in connection with the Going Public Transaction may require shareholders of the Purchaser to enter into contractual lock-up agreements as provided for in underwriting or agency agreements entered into by the Purchaser with such dealers, and the Vendor agrees to complete and execute all customary lock-up agreements (not to exceed 180 days) and other customary documents as may be reasonably requested required under the terms of such underwriting or agency arrangements; provided, however, that the distribution contemplated by the ASX or the Purchaser solely to give effect to this Section 2.5.3.
(j) Execution 2.05 and sales of this Agreement by each of the Vendors constitutes:
(i) an application by such Vendor to subscribe for the Consideration Shares, and confirmation that it will not be necessary for the Vendor to provide a separate application form to the Parent for the Consideration Shares; and
(ii) such Vendor’s agreement to become a member of the Parent for the purposes of section 231(b) of the Corporations Act and to be bound by the constitution of the Parent upon the issue of the Consideration Shares.
(k) Upon the expiry of the respective Insider Share Escrow and Investor Share Escrow, the Parent shall direct its share registry to release the Holding Lock on the Consideration Shares and the Parent agrees to take any and all such other steps or actions as may be required to ensure such Consideration Shares are released from the Holding Lock so they may be freely tradeable by the respective Vendor or its appointed broker.
(l) For the avoidance of doubt, nothing in this Agreement is intended to prevent the disposal of the Consideration Shares by the applicable Vendor following the release of to cover corresponding costs and taxes will be excluded from any such Vendor’s Consideration Shares from escrow upon expiry of the Insider Share Escrow lock-up agreement or Investor Share Escrow, as applicablesimilar restriction.
Appears in 1 contract
Consideration Shares. 2.5.1 In addition to any statutory hold periods under Applicable Laws, UEC covenants and agrees that it will not sell, transfer or otherwise dispose of any Consideration Shares (directly or indirectly) until the date that is:
(a) Following execution six (6) months after the IPO Date, in respect of this Agreement, if required by the ASX Listing Rules, the Parent shall lodge an Appendix 3B with the ASX to announce the proposed issue 4,000,000 of the Consideration Shares.Shares issued to it pursuant to this Agreement;
(b) On or immediately following the Closing Date, the Parent shall do all such acts, matters and things that are necessary to procure the official quotation of the Consideration Shares on the ASX, including: (i) applying for official quotation of the Consideration Shares on the ASX by lodging an Appendix 2A, (ii) lodging with the ASX a cleansing notice in accordance with section 708A(5)(e) of the Corporations Act in respect of the Consideration Shares, (iii) causing its share registry to enter the Consideration Shares in the share register of the Parent; and (iv) requesting its share registry to issue to each Vendor a holding statement in respect of the relevant Consideration Shares.
(c) If the number of Consideration Shares to be issued to a Vendor is not a whole number, then: (i) any fractional entitlement to Consideration Shares which is 0.5 or greater will be rounded up to the nearest whole number of Consideration Shares and (ii) any fractional entitlement to Consideration Shares which is less than 0.5 will be rounded down to the nearest whole number of Consideration Shares. Any difference in the Purchase Price resulting from such rounding will be reflected in accordance with the post-Closing adjustments pursuant to Section 2.7.
(d) That portion of the Purchase Price payable in Consideration Shares which are issued to Insiders will be escrowed (i.e., prohibited from trading), held on the Issuer Sponsored Subregister and subject to a Holding Lock for a period of twelve (12) months after Closing (“Insider Share Escrow”) the IPO Date, in respect of an additional 4,000,000 of the Consideration Shares issued to it pursuant to this Agreement; and
(c) eighteen (18) months after the terms IPO Date, in respect of the balance of the Consideration Shares issued to it pursuant to this Agreement.
2.5.2 UEC covenants and agrees that, subject to compliance with Section 2.5.1 of this Agreement and an escrow restriction deed entered into between each Insider and the Parent (the “Insider Share Escrow Agreements”)Agreement, substantially in the form attached as Schedule 2.5.3(D), hereto.it shall not:
(ea) That portion of the Purchase Price payable in Consideration Shares which are issued to Investors will be escrowed (i.e., prohibited from trading), held on the Issuer Sponsored Subregister and subject to a Holding Lock for a period of three thirty-six (336) months from Closing after Closing, sell or otherwise dispose of any Consideration Shares (“Investor Share Escrow”directly or indirectly) pursuant it holds, in any single or series of related transactions, without first providing the Purchaser ten (10) Business Days to privately place such Consideration Shares at market prices (after which it may sell such Consideration Shares for a period of thirty (30) days for no less than the terms price set out in any offer obtained by the Purchaser and, for the sake of clarity, after such 30-day period, UEC must provide notice in accordance with this Section 2.5.2(a) for any future proposed dispositions);
(b) subject to prior compliance with Section 2.5.2(a) of this Agreement and an escrow restriction deed entered into between each Investor and Agreement, sell or otherwise dispose of any Consideration Shares, representing more than 10% of the Parent volume of the Consideration Shares traded on the Exchange (or such other exchange or quotation service which is the “Investor Share Escrow Agreements”), substantially primary exchange or quotation service for the Consideration Shares from time to time) in the form attached as Schedule 2.5.3(E), hereto.any given day; and
(fc) During the for a period of the Insider Share Escrow or Investor Share Escrow, as applicable, and subject to the terms of the Insider Share Escrow Agreements or Investor Share Escrow Agreements, as applicable, the applicable Vendor shall not do any of the followingforty-eight (48) months after Closing:
(i) dispose of, or agree or offer to dispose of, vote any of the Consideration Shares;
(ii) create or agree or offer to create, any Encumbrance over the Consideration Shares; or
(iii) do, or omit to do, any act if the act or omission would have the effect of transferring effective ownership or control of the Consideration Shares.
(g) The obligations set out in Sections 2.5.3(d), 2.5.3(e) and 2.5.3(f) do not apply if the disposal arises as a result of or pursuant to:
(i) the acceptance of a bona fide takeover bid made under chapter 6 of the Corporations Act in respect of the Consideration Shares;
(ii) the transfer or cancellation of the its Consideration Shares held in escrow pursuant to the Insider Share Escrow and Investor Share Escrow as part against management recommendations at any meeting of a scheme holders of arrangement under Part 5.1 of the Corporations Act;
(iii) participation in an equal access share buy-back, equal capital return or equal capital reduction, in each case, made in accordance with the Corporations Act; or
(iv) if the disposal is required by applicable Law. all of which shall be as set forth in the Insider Share Escrow Agreements or Investor Share Escrow Agreements, as applicable.
(h) The Parent shall, not less than five (5) Business Days (as defined in the ASX Listing Rules) before the end of the period of the Insider Share Escrow or Investor Share Escrow, as applicable, notify the ASX of the release from escrow of the applicable Consideration Shares in accordance with the ASX Listing Rule 3.10A.
(i) Each Vendor shall execute all agreements as may be reasonably requested by the ASX or the Purchaser solely to give effect to this Section 2.5.3.
(j) Execution of this Agreement by each of the Vendors constitutes:
(i) an application by such Vendor to subscribe for the Consideration Shares, and confirmation that it will not be necessary for the Vendor to provide a separate application form to the Parent for the Consideration Shares; and
(ii) such Vendor’s agreement to become a member solicit proxies in connection with any meeting of holders of Consideration Shares, initiate any shareholder proposal or takeover bid for securities of the Parent for the purposes Purchaser or otherwise attempt to cause a change of section 231(b) Control of the Corporations Act Purchaser.
2.5.3 UEC covenants and agrees that it will only deposit and hold its Consideration Shares in a separate and segregated account and shall provide the Purchaser with copies of all statements and transaction records related to be bound such account immediately upon receipt of same and such other reasonable documentation required by the constitution of Purchaser in order to confirm compliance with the Parent upon the issue of the Consideration Sharesabove restrictions.
2.5.4 UEC acknowledges and agrees that:
(ka) Upon the expiry of the respective Insider Share Escrow and Investor Share Escrowin addition to any legend required under Applicable Law, the Parent shall direct its share registry certificates or other document delivered to release the Holding Lock on UEC pursuant to this Agreement that evidence the Consideration Shares and the Parent agrees issued to take any and all such other steps or actions as it hereunder may be required to ensure include a legend indicating that such Consideration Shares are released from subject to the Holding Lock so they restrictions set forth in this Section 2.5;
(b) until the IPO, in addition to the other restrictions set forth herein or under Applicable Law, the Consideration Shares cannot be transferred without the previous consent of the board of directors of the Purchaser, expressed by resolution of the Purchaser's board of directors, at the sole discretion of such board of directors;
(c) the IPO or any transaction pursuant to which the common shares of the Purchaser are listed on an Exchange, including by way of reverse take-over, amalgamation, plan of arrangement of similar transaction, may require the Consideration Shares to become subject to standard hold periods applicable under applicable securities Laws, and may additionally require that such securities be pooled or escrowed pursuant to the policies of a stock exchange or trading system. UEC agrees to sign any such pooling or escrow agreement and abide by any such restrictions as may be freely tradeable by the respective Vendor or its appointed broker.so imposed;
(ld) For the avoidance Consideration Shares have not been and will not be registered under the U.S. Securities Act or the securities laws of doubtany state of the United States and that the Consideration Shares may not be offered or sold, nothing directly or indirectly, in this Agreement the United States without registration under the U.S. Securities Act and applicable state securities laws or compliance with the requirements of an exemption from registration therefrom and UEC acknowledges that the Purchaser has no present intention of filing a registration statement under the U.S. Securities Act or applicable state securities laws in respect of such securities;
(e) it understands and acknowledges that the Consideration Shares are "restricted securities" within the meaning of Rule 144 under the U.S. Securities Act and, without limiting the generality or application of the foregoing, if UEC decides to sell, pledge or otherwise transfer any of the securities purchased hereunder, it will not offer, sell or otherwise transfer any such Consideration Shares directly or indirectly, unless: (i) the sale is intended to prevent the disposal Purchaser; (ii) the sale is made outside the United States in accordance with Regulation S under the U.S. Securities Act and in compliance with applicable local laws and regulations; (iii) the sale is made pursuant to Rule 144 under the U.S. Securities Act and in accordance with any applicable state securities or "blue sky" Laws, and it has prior to such sale, furnished to the Purchaser an opinion of counsel to that effect, which opinion and counsel shall be satisfactory to the Purchaser; (iv) the Consideration Shares are sold in a transaction that does not require registration under the U.S. Securities Act or any applicable state securities or "blue sky" Laws governing the offer and sale of securities, and it has prior to such sale, furnished to the Purchaser an opinion of counsel to that effect, which opinion and counsel shall be satisfactory to the Purchaser; or (v) the Consideration Shares are registered under the U.S. Securities Act and any applicable state Laws governing the offer and sale of such securities, and UEC understands and agrees that the Purchaser may instruct its registrar and transfer agent not to record any transfer of the Consideration Shares without first being notified by the Purchaser that it is satisfied, acting reasonably, that such transfer is exempt from or not subject to registration requirements of the U.S. Securities Act and applicable Vendor following state securities Laws; and
(f) in addition to any other legend contemplated in this Section 2.5.4 of this Agreement, the release of such Vendor’s share certificates or other document evidencing the Consideration Shares from escrow upon expiry will bear the following legends and/or notations under Applicable Laws:
(i) UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE THE DATE THAT IS FOUR MONTHS AND A DAY AFTER THE LATER OF: (I) [CLOSING DATE TO BE INSERTED] and (ii) the date the issuer became a reporting issuer in any province or territory"; and
(ii) THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "U.S. SECURITIES ACT") OR ANY STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF URANIUM ROYALTY CORP. (THE "CORPORATION") THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT AND IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND REGULATIONS, (C) WITHIN THE UNITED STATES IN ACCORDANCE WITH RULE 144 UNDER THE U.S. SECURITIES ACT, IF AVAILABLE, AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE U.S. SECURITIES ACT OR ANY APPLICABLE STATE LAWS, AND THE HOLDER HAS, IN TRANSACTIONS UNDER (C) AND (D), PRIOR TO SUCH SALE, FURNISHED TO THE CORPORATION AN OPINION OF COUNSEL TO THAT EFFECT, WHICH OPINION AND COUNSEL SHALL BE SATISFACTORY TO THE CORPORATION. DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE "GOOD DELIVERY" IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA", provided that if the Consideration Shares are being sold by UEC (subject to compliance with the terms of this Agreement and Applicable Laws) outside of the Insider Share Escrow United States in compliance with the requirements of Rule 904 of Regulation S under the U.S. Securities Act, and the Consideration Shares were acquired when the Purchaser qualified as a "foreign issuer" (as defined in Rule 902 of Regulation S), the legend set forth in Section 2.5.4(f)(ii) above may be removed by UEC providing to the Purchaser a declaration to the Purchaser (or Investor Share Escrowits transfer agent, as if applicable) in the form set forth at Schedule "H" of this Agreement.
Appears in 1 contract
Consideration Shares. (a) Following execution of this Agreement, if required by the ASX Listing Rules24.1 At Completion, the Parent Purchaser shall lodge an Appendix 3B with the ASX to announce the proposed issue of the Consideration Shares.
(b) On or immediately following the Closing Date, the Parent shall do all such acts, matters and things that are necessary to procure the official quotation of the Consideration Shares on the ASX, including: (i) applying for official quotation of the Consideration Shares on the ASX by lodging an Appendix 2A, (ii) lodging with the ASX a cleansing notice in accordance with section 708A(5)(e) of the Corporations Act in respect of the Consideration Shares, (iii) causing its share registry to enter the Consideration Shares in the share register name of the Parent; Vendor and deliver evidence of such issuance. Within 20 (ivtwenty) requesting its share registry Business Days of Completion, the Vendor shall give one or more sets of written instructions to issue the Purchaser with respect to each the names of not more than 10 (ten) natural persons or entities to whom the Vendor a holding statement in respect shall transfer, either directly or through subsequent transfers, all of the relevant Consideration Shares.
(c) If . The instructions will contain details of the number of Consideration Shares to be issued transferred, the name of the transferor and the name of the transferee. In addition, each of the transferees will execute and deliver such documents to a Vendor is not a whole number, then: (i) any fractional entitlement allow counsel for the Purchaser to Consideration Shares which is 0.5 or greater will be rounded up provide an opinion to the nearest whole number of Consideration Shares and (ii) any fractional entitlement to Consideration Shares which is less than 0.5 will be rounded down to Transfer Agent for the nearest whole number of Consideration Shares. Any difference in the Purchase Price resulting from such rounding will be reflected in accordance with the post-Closing adjustments pursuant to Section 2.7.
(d) That portion of the Purchase Price payable in Consideration Shares which are issued to Insiders will be escrowed (i.e., prohibited from trading), held on the Issuer Sponsored Subregister and subject to a Holding Lock for a period of twelve (12) months after Closing (“Insider Share Escrow”) pursuant to the terms of this Agreement and an escrow restriction deed entered into between each Insider and the Parent (the “Insider Share Escrow Agreements”), substantially in the form attached as Schedule 2.5.3(D), hereto.
(e) That portion of the Purchase Price payable in Consideration Shares which are issued to Investors will be escrowed (i.e., prohibited from trading), held on the Issuer Sponsored Subregister and subject to a Holding Lock for a period of three (3) months from Closing (“Investor Share Escrow”) pursuant to the terms of this Agreement and an escrow restriction deed entered into between each Investor and the Parent (the “Investor Share Escrow Agreements”), substantially in the form attached as Schedule 2.5.3(E), hereto.
(f) During the period of the Insider Share Escrow or Investor Share Escrow, as applicable, and subject to the terms of the Insider Share Escrow Agreements or Investor Share Escrow Agreements, as applicable, the applicable Vendor shall not do any of the following:
(i) dispose of, or agree or offer to dispose of, any of the Consideration Shares;
(ii) create or agree or offer to create, any Encumbrance over the Consideration Shares; or
(iii) do, or omit to do, any act if the act or omission would have the effect of transferring effective ownership or control of the Consideration Shares.
(g) The obligations set out in Sections 2.5.3(d), 2.5.3(e) and 2.5.3(f) do not apply if the disposal arises as a result of or pursuant to:
(i) the acceptance of a bona fide takeover bid made under chapter 6 of the Corporations Act in respect of the Consideration Shares;
(ii) the transfer or cancellation transfers of the Consideration Shares held in escrow pursuant to the Insider Share Escrow and Investor Share Escrow as part of a scheme of arrangement under Part 5.1 of the Corporations Act;
(iii) participation in an equal access share buy-back, equal capital return or equal capital reduction, in each case, made in accordance with the Corporations Act; or
(iv) if the disposal is required by applicable Law. all of which shall be as set forth transferees identified in the Insider Share Escrow Agreements or Investor Share Escrow Agreements, as applicableinstruction letters.
24.2 Promptly (h) The Parent shall, not less but in no event more than five (5) Business Days (as defined Days) after receipt by the Purchaser of the information set forth in Clause 24.1, the Purchaser shall cause the Transfer Agent to take all actions necessary to register, in the ASX Listing Rules) before official stock register maintained by the end Transfer Agent, the ownership of the period relevant Consideration Shares to the relevant transferees as set out in the instructions.
24.3 The Guarantor warrants to the Vendor that:
(a) the Guarantor is duly organized, validly existing, and in good standing under the laws of the Insider Share Escrow or Investor Share EscrowState of Delaware, as applicableU.S.A.;
(b) the Guarantor has all necessary organizational power and authority to enter into this Agreement, notify and each other Transaction Document to which it is a party, to carry out its obligations hereunder and thereunder, and to consummate the ASX transactions contemplated hereby and thereby. The execution and delivery by the Guarantor of this Agreement and each other Transaction Document to which it is a party, the performance by the Guarantor of its obligations hereunder and thereunder, and the consummation by the Guarantor of the release from escrow transactions contemplated hereby and thereby have been duly authorized by all requisite organizational action on the part of the applicable Consideration Shares Guarantor. This Agreement and each other Transaction Document to which it is a party has been duly executed and delivered by the Guarantor, and (assuming due authorization, execution and delivery by the other parties hereto) constitutes a legal, valid, and binding obligation of the Guarantor enforceable against the Guarantor in accordance with the ASX Listing Rule 3.10A.its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors' rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity);
(ic) Each Vendor shall execute all agreements as may be reasonably requested the execution, delivery, and performance by the ASX or the Purchaser solely to give effect to this Section 2.5.3.
(j) Execution Guarantor of this Agreement by and each other Transaction Document to which it is a party, and the consummation of the Vendors constitutes:
transactions contemplated hereby and thereby, do not and will not: (ia) an application by such Vendor to subscribe for result in a violation or breach of any provision of the Consideration Shares, and confirmation that it will not be necessary for organization documents of the Vendor to provide Guarantor; (b) result in a separate application form violation or breach of any provision of any law or order of a Governmental Entity applicable to the Parent for Guarantor; or (c) require the Consideration Sharesconsent, notice, or other action by any person under, conflict with, result in a violation or breach of, constitute a default under or result in the acceleration of any agreement to which the Guarantor is a party, except in the cases of clauses (b) and (c), where the violation, breach, conflict, default, acceleration, or failure to give notice would not have a material adverse effect on the Guarantor's ability to consummate the transactions contemplated hereby. No consent, approval, Permit, order of a Governmental Entity, declaration or filing with, or notice to, any Governmental Entity is required by or with respect to the Guarantor in connection with the execution and delivery of this Agreement and each other Transaction Document to which it is a party and the consummation of the transactions contemplated hereby and thereby, except such consents, approvals, Permits, orders of any Governmental Entity, declarations, filings, or notices which would not have a material adverse effect on the Guarantor's ability to consummate the transactions contemplated hereby and thereby; and
(iid) such Vendor’s agreement to become a member of the Parent for the purposes of section 231(b) of the Corporations Act and to be bound by the constitution of the Parent upon the issue of the Consideration Shares.
(k) Upon the expiry of the respective Insider Share Escrow and Investor Share Escrow, the Parent shall direct its share registry to release the Holding Lock on the Consideration Shares are duly authorised and, when issued and the Parent agrees to take any paid for in accordance with this Agreement will be duly and validly issued, fully paid and nonassessable, free and clear of all such Encumbrances, other steps or actions as may be required to ensure such Consideration Shares are released from the Holding Lock so they may be freely tradeable by the respective Vendor or its appointed brokerthan transfer restrictions under applicable securities laws.
(l) For 24.4 The Vendor warrants to the avoidance of doubt, nothing Guarantor that it is an “accredited investor” as set forth in this Agreement is intended to prevent the disposal of the Consideration Shares by the applicable Vendor following the release of such Vendor’s Consideration Shares from escrow upon expiry of the Insider Share Escrow or Investor Share Escrow, as applicableSecurities Act.
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Consideration Shares. (a) Following execution The Sellers will not, directly or indirectly, (i) place any Encumbrance on any of this Agreement, if required by the ASX Listing Rules, the Parent shall lodge an Appendix 3B with the ASX to announce the proposed issue of the its Consideration Shares, as applicable, or any securities convertible into or exercisable or exchangeable for any Consideration Shares, as applicable, or (ii) otherwise transfer or dispose of, directly or indirectly, any interest in any Consideration Shares, from the date hereof until twelve (12) months from the date such Seller receives beneficial ownership of such Consideration Shares (the “Lock-Up Period”). The Consideration Shares constitute “restricted securities” under the Securities Act, and may not be transferred absent registration under the Securities Act or an exemption therefrom, and any such transfer shall be subject to compliance with applicable state securities Laws.
(b) On Each Seller undertakes not to conduct any short selling, enter into any equity swaps or immediately following any similar arrangements having an effect on the Closing Dateprice of the Purchaser’s securities on Nasdaq Global Select Market or any other market place or over-the-counter quotation service from the date of this Agreement until and including the expiration of the Lock-Up Period. To ensure compliance with the restrictions imposed by this Agreement, the Parent Purchaser may issue appropriate “stop-transfer” instructions to its transfer agent. The Purchaser shall do all such acts, matters and things that are necessary to procure the official quotation of the Consideration Shares on the ASX, including: not be required (i) applying for official quotation to transfer on its books any Consideration Shares that have been sold or otherwise transferred in violation of any of the Consideration Shares on the ASX by lodging an Appendix 2A, provisions of this Agreement or (ii) lodging with the ASX a cleansing notice in accordance with section 708A(5)(e) to treat as owner of the Corporations Act in respect of the such Consideration Shares, (iii) causing its share registry or to enter accord the right to vote or pay dividends, to any purchaser or other transferee to whom such Consideration Shares in the share register of the Parent; and (iv) requesting its share registry to issue to each Vendor a holding statement in respect of the relevant Consideration Shareshas been purportedly so transferred.
(c) If the number of a Seller wishes to sell its Consideration Shares to be issued to a Vendor is with an aggregate value (using the volume weighted average price of the Purchaser Common Stock on Nasdaq Global Select Market or equivalent marketplace for the 30 consecutive trading days immediately preceding (but not a whole numberincluding) the date of such sale (rounded off upwards, then: (i) any fractional entitlement to Consideration Shares which is 0.5 or greater will be rounded up with two decimals, to the nearest whole number of figure)) that exceeds $2,500,000 during any calendar quarter (with respect to any Consideration Shares and (ii) any fractional entitlement subject to Consideration Shares which is less than 0.5 the lock-up undertaking set out in Section 2.9(a)), such sale will be rounded down to carried out via a reputable investment bank engaged by the nearest whole number of Consideration Shares. Any difference such Seller in the Purchase Price resulting from such rounding will be reflected in accordance consultation with the post-Closing adjustments pursuant Purchaser; provided, that the Seller proposing to Section 2.7carry out such sale shall provide the Purchaser a reasonable advance notice.
(d) That portion of the Purchase Price payable in Each book-entry security entitlement representing any Consideration Shares which are (or any other securities issued in respect of such shares upon any stock split, stock dividend, recapitalization, merger, consolidation or similar event) issued to Insiders will be escrowed (i.e., prohibited from trading), or held on the Issuer Sponsored Subregister and subject to by a Holding Lock for a period of twelve (12) months after Closing (“Insider Share Escrow”) pursuant to Seller in accordance with the terms of this Agreement and an escrow restriction deed entered into between each Insider and hereof shall bear the Parent following legends (or substantially similar legends, in addition to any other legends required by law, the “Insider Share Escrow Agreements”), substantially in the form attached as Schedule 2.5.3(D), hereto.Purchaser’s Organizational Documents or any other agreement to which such Seller is a party):
(e) That portion of the Purchase Price payable in Consideration Shares which are issued to Investors will be escrowed “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (i.e., prohibited from trading), held on the Issuer Sponsored Subregister and subject to a Holding Lock for a period of three (3) months from Closing (THE “Investor Share Escrow”) pursuant to the terms of this Agreement and an escrow restriction deed entered into between each Investor and the Parent (the “Investor Share Escrow AgreementsACT”), substantially in the form attached as Schedule 2.5.3(E)OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS, heretoPURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.”
(f) During the period of the Insider Share Escrow or Investor Share Escrow, as applicable, and subject to the terms of the Insider Share Escrow Agreements or Investor Share Escrow Agreements, as applicable, the applicable Vendor shall not do any of the following:
(i) dispose of, or agree or offer to dispose of, any of the Consideration Shares;
(ii) create or agree or offer to create, any Encumbrance over the Consideration Shares; or
(iii) do, or omit to do, any act if the act or omission would have the effect of transferring effective ownership or control of the Consideration Shares“THE SECURITIES MAY NOT BE USED IN HEDGING TRANSACTIONS UNLESS IN COMPLIANCE WITH THE ACT AND ALL SUCH APPLICABLE LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE OR IN ACCORDANCE WITH REGULATION S OF THE ACT.
(g) The obligations set out in Sections 2.5.3(d), 2.5.3(e) and 2.5.3(f) do not apply if the disposal arises as a result of or pursuant to:
(i) the acceptance of a bona fide takeover bid made under chapter 6 of the Corporations Act in respect of the Consideration Shares;
(ii) the transfer or cancellation of the Consideration Shares held in escrow pursuant to the Insider Share Escrow and Investor Share Escrow as part of a scheme of arrangement under Part 5.1 of the Corporations Act;
(iii) participation in an equal access share buy-back, equal capital return or equal capital reduction, in each case, made in accordance with the Corporations Act; or
(iv) if the disposal is required by applicable Law. all of which shall be as set forth in the Insider Share Escrow Agreements or Investor Share Escrow Agreements, as applicable.
(h) The Parent shall, not less than five (5) Business Days (as defined in the ASX Listing Rules) before the end of the period of the Insider Share Escrow or Investor Share Escrow, as applicable, notify the ASX of the release from escrow of the applicable Consideration Shares in accordance with the ASX Listing Rule 3.10A.
(i) Each Vendor shall execute all agreements as may be reasonably requested by the ASX or the Purchaser solely to give effect to this Section 2.5.3.
(j) Execution of this Agreement by each of the Vendors constitutes:
(i) an application by such Vendor to subscribe for the Consideration Shares, and confirmation that it will not be necessary for the Vendor to provide a separate application form to the Parent for the Consideration Shares; and
(ii) such Vendor’s agreement to become a member of the Parent for the purposes of section 231(b) of the Corporations Act and to be bound by the constitution of the Parent upon the issue of the Consideration Shares.
(k) Upon the expiry of the respective Insider Share Escrow and Investor Share Escrow, the Parent shall direct its share registry to release the Holding Lock on the Consideration Shares and the Parent agrees to take any and all such other steps or actions as may be required to ensure such Consideration Shares are released from the Holding Lock so they may be freely tradeable by the respective Vendor or its appointed broker.
(l) For the avoidance of doubt, nothing in this Agreement is intended to prevent the disposal of the Consideration Shares by the applicable Vendor following the release of such Vendor’s Consideration Shares from escrow upon expiry of the Insider Share Escrow or Investor Share Escrow, as applicable.”
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Consideration Shares. 4.1 Unless otherwise agreed in writing by the Purchaser and provided that such transferee agrees in writing to be subject to the provisions of clauses 4 and 9.5, each of the Vendors agrees that he or she will not offer, sell, pledge, encumber, transfer or otherwise dispose of any of the Consideration Shares issued and allotted to him or her pursuant to this Agreement (aincluding any shares he or she receives as a result of any stock splits, stock dividends, combinations of shares, recapitalisations or other such events relating to the common stock of the Purchaser which may occur at any time and from time to time from and after Completion) Following execution or any interest therein during the period of one year from the Completion Date (the "Non-Disposal Period") and thereafter unless an exemption from the registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), is available or pursuant to an effective registration statement under the Securities Act and pursuant to an exemption from any applicable United States state securities or blue sky laws or an effective registration or other qualification under any applicable United States state securities or blue sky laws.
4.2 The Purchaser hereby agrees that ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be entitled to transfer the beneficial and/or legal interest in their Consideration Shares to a corporate vehicle of their choice incorporated in the Cayman Islands provided that the said transferee agrees in writing to be subject to the provisions of clauses 4 and 9.5 and further provided that ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ or a member of his immediate family is and will continue to be the ultimate beneficial owner of the corporate vehicle for the Non-Disposal Period in respect of 60% of their Consideration Shares and the Option Period in respect of the Option Shares (as such terms are defined below).
4.3 Each of the Vendors grants to the Purchaser an option (the "Option") exercisable during the period of two years from the Completion Date (the "Option Period") to acquire at US$45.31 per share (which price shall be subject to appropriate adjustment in the event of any stock splits, stock dividends, combinations of shares, recapitalisations or other such events relating to the common stock of the Purchaser which may occur at any time and from time to time from and after Completion), the number of Consideration Shares that is equal to up to forty percent (40%) of the Consideration Shares issued and allotted to each Vendor pursuant to this Agreement (subject to appropriate adjustment in the event of any stock splits, stock dividends, combinations of shares, recapitalisations or other such events relating to the common stock of the Purchaser which may occur at any time and from time to time from and after Completion) (the "Option Shares").
4.4 The Option shall be capable of exercise in whole or in part at any time or times during the Option Period by service of notice in writing on the Vendors provided that if the Purchaser does exercise its option in part, it will treat all the Vendors equally and exercise the Option in respect of the same proportional percentage of each Vendor's Option Shares. Service of such notice shall constitute a legally binding obligation of each of the Vendors to transfer, subject to the Vendors receiving the consideration due in relation to such shares as set out in clause 4.3, such number of Option Shares as is specified in the notice to the Purchaser credited as fully paid with full title guarantee and free and clear of all liens, charges and encumbrances. The purchase price shall be payable to the Vendors' Solicitors in cash within thirty (30) days of the exercise of the Option against delivery of certificates for the Option Shares to be repurchased and the Purchaser shall not be concerned to see to the distribution of the monies so paid.
4.5 Notwithstanding any other provision of this Agreementclause 4 other than clause 4.2, if required whilst the Option remains exercisable in whole or in part, each of the Vendors undertakes that he or she shall not offer, sell, pledge, encumber, transfer or otherwise dispose of the Option Shares (including any shares he or she receives as a result of any stock splits, stock dividends, combinations of shares, recapitalisations or other such events relating to the common stock of the Purchaser which may occur at any time and from time to time from and after Completion) or any interest therein unless otherwise agreed to in writing by the ASX Listing RulesPurchaser and provided that such transferee agrees in writing to be subject to the provisions of this clause 4 and 9.5.
4.6 Each of the Vendors understands and acknowledges that:
4.6.1 the Consideration Shares are being distributed by the Purchaser pursuant to the terms of Regulation S promulgated under the Securities Act ("Regulation S"), which permits securities to be sold to non-U.S. Persons in "offshore transactions" (as defined in Regulation S), subject to certain terms and conditions; and
4.6.2 the Parent Consideration Shares have not been registered under the Securities Act and may not be offered or sold in the United States or to, or for the account or benefit of, any U.S. Person (as defined in Regulation S) unless such securities are registered under the Securities Act or such offer or sale is made pursuant to an exemption from the registration requirements of the Securities Act.
4.7 Each of the Vendors agrees that during the Non-Disposal Period, each of the Vendors shall lodge an Appendix 3B with not engage in any activity for the ASX purpose of, or which may reasonably be expected to announce have the proposed issue of effect of, conditioning the market in the United States for the Consideration Shares.
4.8 Each of the Vendors agrees that from the date hereof until the expiration of the Non-Disposal Period he or she shall not with respect to the Consideration Shares enter into any short sale, sell or purchase any option or other derivative security, enter into any swap, or enter into any other transaction which would have the effect of, directly or indirectly, in whole or in part, hedging the economic or investment risk of such Vendor's investment in the Consideration Shares. Each of the Vendors represents that no such hedging position is currently in effect.
4.9 Each of the Vendors agrees that the certificates for the Consideration Shares to be received shall bear the following legend: "The Shares represented by this certificate have not been registered under the Securities Act of 1933, as amended (b) On the "Securities Act"), or immediately with any state securities commission, and may not be offered, sold, pledged, transferred, encumbered or disposed of by the holder except in accordance with the provisions of Regulation S under the Securities Act, pursuant to registration under the Securities Act, or pursuant to an available exemption from registration; and that hedging transactions involving those securities may not be conducted unless in compliance with the Securities Act". During the twelve month period following the Closing DateNon-Disposal Period, the Parent shall do all Purchaser will cause the removal of such actslegend upon receipt of an opinion of United States counsel, matters or other evidence, in form and things substance reasonably satisfactory to the Purchaser, to the effect that are necessary to procure the official quotation specified Consideration Shares may be sold in brokers transactions under Rule 144. After the Option Period, upon request of any Vendor, the Purchaser will cause the removal of such legend from any Consideration Shares held by the Vendors. In addition, each of the Vendors understands that the Purchaser's transfer agents will not register any transfer of the Consideration Shares on during the ASX, including: (i) applying for official quotation of the Consideration Shares on the ASX by lodging an Appendix 2A, (ii) lodging with the ASX a cleansing notice in accordance with section 708A(5)(e) of the Corporations Act in respect of the Consideration Shares, (iii) causing its share registry to enter the Consideration Shares in the share register of the Parent; and (iv) requesting its share registry to issue to each Vendor a holding statement in respect of the relevant Consideration Shares.
(c) If the number of Consideration Shares to be issued to a Vendor is not a whole number, then: (i) any fractional entitlement to Consideration Shares which is 0.5 or greater will be rounded up to the nearest whole number of Consideration Shares and (ii) any fractional entitlement to Consideration Shares which is less than 0.5 will be rounded down to the nearest whole number of Consideration Shares. Any difference in the Purchase Price resulting from such rounding will be reflected in accordance with the postNon-Closing adjustments pursuant to Section 2.7.
(d) That portion of the Purchase Price payable in Consideration Shares which are issued to Insiders will be escrowed (i.e., prohibited from trading), held on the Issuer Sponsored Subregister and subject to a Holding Lock for a period of twelve (12) months after Closing (“Insider Share Escrow”) pursuant to the terms of this Agreement and an escrow restriction deed entered into between each Insider Disposal Period and the Parent (the “Insider Share Escrow Agreements”), substantially in the form attached as Schedule 2.5.3(D), hereto.
(e) That portion of the Purchase Price payable in Consideration Shares which are issued to Investors will be escrowed (i.e., prohibited from trading), held on the Issuer Sponsored Subregister and subject to a Holding Lock for a period of three (3) months from Closing (“Investor Share Escrow”) pursuant to the terms of this Agreement and an escrow restriction deed entered into between each Investor and the Parent (the “Investor Share Escrow Agreements”), substantially in the form attached as Schedule 2.5.3(E), hereto.
(f) During the period of the Insider Share Escrow or Investor Share EscrowOption Period, as applicable, and agrees that the Purchaser may place stop transfer orders with its transfer agents with respect to such certificates.
4.10 Each of the Vendors agrees that certificates for the Consideration Shares to be received on Completion shall bear the following legend in addition to the legend set forth above for the duration of the Non-Disposal Period in respect of all of his or her Consideration Shares and the Option Period in respect of 40% of his or her Consideration Shares, as applicable: "In addition to and not in limitation of the restriction set forth above, the Shares represented by this certificate shall be subject to the terms of the Insider Share Escrow Agreements Purchase Agreement dated 3 August 1999 between the shareholders of Apollo Leisure Group Limited and SFX Entertainment, Inc. (the "Company") which includes provisions affecting the free transferability of the shares represented by this certificate. HOLDERS AND/OR PROSPECTIVE PURCHASERS OR TRANSFEREES OF INTERESTS IN THESE SHARES SHOULD BE AWARE THAT THE COMPANY, UNDER CERTAIN CIRCUMSTANCES, WILL HAVE THE ABSOLUTE RIGHT, WITHOUT NOTICE TO THE HOLDER, TO PREVENT THE TRANSFER OF OR CANCEL THE SHARES REPRESENTED BY THIS CERTIFICATE ON THE BOOKS OF THE COMPANY." Upon the request of a Vendor after the Option Period, the Purchaser will cause the removal of such legend from any Consideration Shares then held by the Vendors.
4.11 Each of the Vendors acknowledges that the Consideration Shares will be "restricted securities" as defined in Rule 144 under the Securities Act and may be resold in the U.S. only after the Non-Disposal Period and only pursuant to the requirements of Rule 144 or Investor Share Escrow Agreementsotherwise in reliance upon an exemption from registration under the Securities Act.
4.12 Each of the Vendors hereby warrants and undertakes to and with the Purchaser that:
4.12.1 he or she has downloaded to paper format from the internet website maintained by the United States Securities and Exchange Commission ("SEC") at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇ and reviewed the most recent annual report to stockholders of the Purchaser, the latest available annual report of the Purchaser on Form 10-K, as applicable, the applicable Vendor shall not do amended; any of the following:
(i) dispose of, or agree or offer to dispose of, Purchaser's quarterly reports on Form 10-Q filed since such reports; any of the Consideration Shares;
(ii) create or agree or offer to create, any Encumbrance over Purchaser's filings on Form 8-K since such reports; and has reviewed a statement of certain risk factors associated with investment in the Consideration Shares; or
(iii) do, or omit to do, any act if the act or omission would have the effect of transferring effective ownership or control of the Consideration Shares.
(g) The obligations Shares as set out in Sections 2.5.3(d)the Purchaser's Form 10-K, 2.5.3(eas amended (the "Risk Factors") and 2.5.3(f) do not apply if in all cases consents to his or her receipt of such reports to the disposal arises as a result extent received in this manner;
4.12.2 he or she was provided with the opportunity to ask questions of and receive answers from the Purchaser or pursuant to:
(i) its representative, concerning the acceptance of a bona fide takeover bid made under chapter 6 operations, business and financial condition of the Corporations Act in respect of the Consideration SharesPurchaser, and all such questions have been answered to his or her full satisfaction and any information necessary to verify such responses has been made available to him or her;
(ii) the transfer 4.12.3 he or cancellation she has received such documents, materials and information as he or she deems necessary or appropriate for evaluation of the Consideration Shares held in escrow pursuant to the Insider Share Escrow and Investor Share Escrow as part of a scheme of arrangement under Part 5.1 of the Corporations Act;
(iii) participation in an equal access share buy-back, equal capital return or equal capital reduction, in each case, made in accordance with the Corporations Act; or
(iv) if the disposal is required by applicable Law. all of which shall be as set forth in the Insider Share Escrow Agreements or Investor Share Escrow Agreements, as applicable.
(h) The Parent shall, not less than five (5) Business Days (as defined in the ASX Listing Rules) before the end of the period of the Insider Share Escrow or Investor Share Escrow, as applicable, notify the ASX of the release from escrow of the applicable Consideration Shares in accordance with the ASX Listing Rule 3.10A.
(i) Each Vendor shall execute all agreements as may be reasonably requested by the ASX or the Purchaser solely to give effect to this Section 2.5.3.
(j) Execution of this Agreement by each of the Vendors constitutes:
(i) an application by such Vendor to subscribe for the Consideration Shares, and confirmation further confirms that it he or she has carefully read and understands these materials and has made such further investigation as was deemed appropriate to obtain additional information to verify the accuracy of such materials;
4.12.4 he or she confirms that the Consideration Shares were not offered to him or her by any means of general solicitation or general advertising;
4.12.5 he or she confirms that he has such knowledge and experience in financial and business matters so that he or she is capable of evaluating the merits and risks of an investment in the Consideration Shares and has the capacity to protect his or her own interests, understands that such investment involves a high degree of risk, has carefully considered the Risk Factors before making his decision to make the investment and can bear the entire economic risk of the investment;
4.12.6 he or she understands that there is no assurance that any exemption from registration under the Securities Act will be available and that, even if available, such exemption may not allow him or her to transfer all or any portion of the Consideration Shares under the circumstances, in the amounts or at the times he or she might propose;
4.12.7 he or she will be necessary acquiring the Consideration Shares for his or her own account, for investment purposes only, and not with a view towards the Vendor to provide a separate application form to sale or other distribution thereof, in whole or in part;
4.12.8 he or she understands that the Parent for Consideration Shares have not been approved or disapproved by the SEC or by any other US federal or state agency or any UK regulatory authority;
4.12.9 he or she understands that: (i) there are restrictions on the transferability of the Consideration Shares; and
(ii) such Vendor’s agreement owners of Consideration Shares have no right to become a member of require the Parent for the purposes of section 231(b) of the Corporations Act and Consideration Shares to be bound by registered under the constitution Securities Act; and (iii) it may not be possible for him or her to sell his or her Consideration Shares and accordingly, he or she may have to hold the Consideration Shares, and bear the entire economic risk of this investment for an extended period of time;
4.12.10 he or she is not a U.S. Person; he or she is executing such undertaking outside the Parent upon the issue United States; he or she has received no offer of the Consideration SharesShares in the United States; and he or she has made no offer or order to purchase the Consideration Shares in the United States; and
4.12.11 he or she has not relied upon any information or representation with regard to the Purchaser or the Consideration Shares apart from the information in clause 4.14.
(k) Upon 4.13 The Purchaser shall prepare and submit to the expiry of New York Stock Exchange, or such other national securities exchange on which the respective Insider Share Escrow and Investor Share EscrowPurchaser's Class A common stock is principally traded, the Parent shall direct its share registry to release the Holding Lock on a listing application covering the Consideration Shares and shall use its commercially reasonable efforts to obtain, prior to any permitted sale by a Vendor, approval for the Parent agrees to take any and all such other steps or actions as may be required to ensure listing of such Consideration Shares are released from subject to official notice of issuance. The Vendors shall, without any expenditure of funds, co-operate fully with the Holding Lock so they Purchaser with respect to such listing and any filings made with the SEC by the Purchaser.
4.14 The Purchaser hereby warrants to each of the Vendors as follows:
4.14.1 The Purchaser is a corporation duly organised, validly existing and in good standing under the laws of the state of Delaware with full corporate power and corporate authority to enter into this Agreement and each of the agreements contemplated hereby to be executed by it and to perform its obligations hereunder and thereunder.
4.14.2 This Agreement and all documents required to be executed and delivered by the Purchaser hereunder at Completion have been or will be duly authorised, executed and delivered on behalf of the Purchaser. This Agreement and all agreements required hereunder to be executed and delivered on behalf of the Purchaser, constitute the legal, valid and binding obligations of the Purchaser enforceable against it in accordance with their respective terms, except that enforceability may be freely tradeable limited by bankruptcy, insolvency, moratorium or other similar laws of general application affecting the respective Vendor enforceability of creditors' rights generally or by general principles of equity (whether applied by a court of law or equity). Neither the execution of this Agreement or the consummation of the transactions provided for herein will result in any breach of, acceleration of, maturity of, or constitute any default under, except to the extent waived, any indentures, mortgages, promissory notes, contracts or agreements to which either the Purchaser is a party or by which it or its appointed brokerproperties are bound or will cause it to violate any applicable legal requirements, judgement, order or decree of any governmental authority or any provision of the Certificate of Incorporation or bylaws of the Purchaser.
4.14.3 The Purchaser has authorised capital stock of (la) For the avoidance 100,000,000 shares of doubtClass A common stock, nothing in this Agreement is intended to prevent the disposal par value $0.01 per share, of which 53,705,446 shares were issued and outstanding and no shares were held as treasury stock as at close of business on 28 July 1999; (b) 10,000,000 shares of Class B common stock, par value $0.01 per share, of which 2,545,557 were issued and outstanding as at close of business on 28 July 1999 and (c) 25,000,000 shares of preferred stock, par value $0.01 per share, of which no shares were issued and outstanding as of the Consideration Shares by the applicable Vendor following the release of such Vendor’s Consideration Shares from escrow upon expiry date hereof. All of the Insider Share Escrow or Investor Share Escrowissued shares of common stock of the Purchaser have been duly authorised and validly issued, as applicable.are fully paid and non-assessable and constitute the only issued
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